Evans v. Chicago Newspaper Guild-CWA

2020 IL App (1st) 200281

• Court: Appellate Court of Illinois
• Decided: July 20, 2020
• Docket: 1-20-0281
• Status: Published

Opinion

2020 IL App (1st) 200281

FIRST DIVISION July 20, 2020

No. 1-20-0281

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

TIMOTHY C. EVANS, as Chief Judge of the Circuit ) Court of Cook County, ) ) Plaintiff-Appellee, ) ) Appeal from the v. ) Circuit Court of ) Cook County CHICAGO NEWSPAPER GUILD-CWA, a Local ) (#34071) chartered by The Newspaper Guild-CWA ) No. 19 CH 14137 (AFL-CIO, CLC) and STEVEN M. BIERIG, in his ) capacity as a Certified Arbitrator, ) The Honorable ) Neil H. Cohen, Defendants ) Judge Presiding. ) (Chicago Newspaper Guild-CWA, a Local (#34071) ) chartered by The Newspaper Guild-CWA (AFL-CIO, ) CLC), Defendant-Appellant). )

JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Griffin and Justice Walker concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Timothy C. Evans, in his capacity as Chief Judge of the Circuit Court of Cook

County, filed a complaint in the circuit court seeking to permanently enjoin an arbitration

proceeding. The circuit court granted a preliminary injunction, finding that it had authority to

decide procedural gateway issues to arbitration. Defendant, Chicago Newspaper Guild-CWA, No. 1-20-0281

appeals from the circuit court’s entry of the preliminary injunction. 1 On appeal, plaintiff concedes

that an arbitrator should decide procedural gateway issues to arbitration and agrees that the

injunction in his favor should be reversed. We agree and reverse the circuit court’s preliminary

injunction in favor of plaintiff, and we remand for further proceedings.

¶2 I. BACKGROUND

¶3 We set forth only those facts necessary to understand our disposition. The parties are

subject to a collective bargaining agreement (CBA), which, among other things, governs

grievances. All grievances must be in writing, and all submission times and time limits for

processing grievances may be extended by mutual agreement. Section 14.4 of CBA outlines the

Grievance Procedure Steps. The union must first, within 30 days, submit a grievance to the

aggrieved employee’s immediate supervisor. If the grievance is not resolved in the employee’s

favor, the union must, within five days, submit the grievance to the Director of Interpreter Services

(the Director). If the Director does not resolve the grievance in the employee’s favor, the union

must, within 10 days, submit the grievance to plaintiff. If plaintiff does not resolve the grievance

in the employee’s favor, the union must, within 30 days, submit the grievance to an impartial party

for arbitration. Section 14.8 of the CBA provides in part that “[t]he party making the request for

impartial arbitration must request the State Labor Relations Board, American Arbitration

Association or the Federal Mediation and Conciliation Service to provide a panel of arbitrators to

each party within sixty (60) days of the notice or the grievance will be forfeited.”

¶4 Martin Perez was employed by plaintiff as a court interpreter and is a member of defendant,

a union acting as the sole and exclusive representative for purposes of collective bargaining for

court interpreters employed by the Circuit Court of Cook County. In May 2017, plaintiff suspended

1 Steven Bierig, in his capacity as a certified arbitrator, was a defendant below, but has not participated in this appeal.

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Perez for 10 days. Defendant filed, within 30 days, a grievance challenging the suspension

(suspension grievance). The matter was not resolved in Perez’s favor by his immediate supervisor

or the Director, and on October 13, 2017, plaintiff denied Perez’s grievance. On October 23, 2017,

defendant submitted a written notice of intent to arbitrate the suspension grievance.

¶5 In December 2017, plaintiff terminated Perez’s employment. Defendant filed, within 30

days, a grievance challenging the termination (termination grievance). The matter was not resolved

in Perez’s favor by his immediate supervisor or the Director, and on February 26, 2018, plaintiff

denied Perez’s grievance. On March 2, 2018, defendant submitted a written notice of intent to

arbitrate the termination grievance.

¶6 On April 16, 2019, defendant contacted plaintiff’s labor relations counsel to schedule an

arbitration on the termination grievance with defendant, Steven M. Bierig, a certified arbitrator.

The parties agreed to arbitrate the termination grievance before Bierig on December 11, 2019. In

November 2019, plaintiff, through counsel, notified defendant and Bierig that the arbitration would

be cancelled because of defendant’s delays in scheduling the arbitration under section 14.8 of the

CBA. Bierig, however, twice denied plaintiff’s request to cancel the arbitration and expressed the

intent to proceed with the arbitration even if plaintiff failed to participate.

¶7 On December 9, 2019—just two days before the scheduled arbitration—plaintiff filed a

verified complaint for declaratory judgment and an application to stay the arbitration. The thrust

of plaintiff’s complaint was that, pursuant to section 14.8 of the CBA, defendant forfeited any right

to arbitration by failing to request that any arbitral forum provide a panel of arbitrators to the

parties within 60 day of the notice of intent to arbitrate. Along with his verified complaint, plaintiff

sought an emergency temporary restraining order (TRO) to enjoin the arbitration.

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¶8 On December 10, 2019, defendant filed a motion to dismiss plaintiff’s complaint pursuant

to sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(a)(9)

(West 2018)). Defendant asserted that plaintiff could not state a claim for injunctive relief because

the complaint acknowledged that the CBA contained an arbitration agreement. Defendant further

asserted that plaintiff’s complaint was barred by an affirmative matter, namely that plaintiff had

already agreed to arbitration and participated in preliminary matters with Bierig. The same day

that defendant filed its motion to dismiss, the circuit court, after hearing oral argument, granted

plaintiff a TRO, enjoined the scheduled arbitration “until further order,” and set a briefing schedule

on defendant’s motion to dismiss.

¶9 On January 29, 2020, after briefing and a hearing, the circuit court denied defendant’s

motion to dismiss and ordered that “the stay of arbitration shall continue in effect.” The circuit

court made several findings on the record relative to the stay. At bottom, the circuit court reasoned

that whether defendant had forfeited its ability to pursue arbitration by failing to meet the

contractual procedures or time limits set forth in the CBA was a question that could be determined

by the circuit court rather than by an arbitrator.

¶ 10 Defendant filed a notice of interlocutory appeal on February 10, 2020, pursuant to Illinois

Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017), from the circuit court’s January 29, 2020, order

continuing the stay of arbitration.

¶ 11 II. ANALYSIS

¶ 12 On appeal, both parties request that we reverse the circuit court’s injunction. Defendant

argues that the circuit court erred as a matter of law by not deferring the question of procedural

arbitrability to the arbitrator, Bierig, and further erred by denying its motion to dismiss. Plaintiff

agrees that contractual procedural questions or requirements should be resolved by an arbitrator

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and not by the circuit court, and concedes that he was not entitled to injunctive relief. Plaintiff also

argues that this court lacks jurisdiction to review the circuit court’s denial of defendant’s motion

to dismiss.

¶ 13 Arbitration agreements are contracts (Carr v. Gateway, 241 Ill. 2d 15, 20 (2011)), and are

interpreted in the same manner and according to the same rules as are all other contracts (State

Farm Fire & Casualty Co. v. Watts Regulator Co., 2016 IL App (2d) 160275, ¶ 27 (citing J & K

Cement Construction, Inc. v. Montalbano Builders, Inc., 119 Ill. App. 3d 663, 669 (1983))). The

interpretation of a contract is a question of law that we review de novo. Carr, 241 Ill. 2d at 20.

Furthermore, because the circuit court did not hold an evidentiary hearing on the request for an

injunction, our review of the circuit court’s judgment is de novo. See Amalgamated Transit Union,

Local 900 v. Suburban Bus Division of Regional Transportation Authority, 262 Ill. App. 3d 334,

337 (1994).

¶ 14 Where a party seeks to compel arbitration, the sole issue before the circuit court is whether

the parties agreed arbitrate the dispute in question. Griffith v. Wilmette Harbor Ass’n, Inc., 378 Ill.

App. 3d 173, 180 (2007). “ ‘If the language of an arbitration agreement is clear and it is obvious

that the dispute desired to be arbitrated falls within the scope of the arbitration clause, the court

should compel arbitration.’ ” Id. (quoting Travis v. American Manufacturers Mutual Insurance

Co., 355 Ill. App 3d 1171, 1175-76 (2002)).

¶ 15 Here, there is no dispute that the CBA set forth the procedures for resolving grievances,

including through arbitration, and neither party challenges the enforceability of the CBA’s

arbitration provision. In the proceedings below, the sole issue before the circuit court was whether

defendant’s alleged failure to comply with section 14.8 of the CBA amounted to forfeiture. In other

words, plaintiff contended that defendant’s failure to abide by a contractual procedure in the

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grievance process—a timely request to an arbitral forum for a list of arbitrators—extinguished

defendant’s right to arbitrate Perez’s suspension and termination grievances.

¶ 16 The United States Supreme Court has observed that “procedural questions which grow out

of the dispute and bear on its final disposition are presumptively not for the judge, but for an

arbitrator to decide.” (Emphasis in original and internal quotation marks omitted.) Howsam v.

Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (quoting John Wiley & Sons, Inc. v. Livingston,

376 U.S. 543, 557 (1964)). There is also a presumption, where the parties to an arbitration

agreement did not clearly contract otherwise, that the arbitrator should decide “an allegation of

waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 406 U.S. 1, 24-25 (1983). This court’s precedent is in accord with the Supreme

Court’s view that procedural questions affecting whether arbitration was properly invoked are

matters for an arbitrator, not the courts. See, e.g., Amalgamated Transit Union, Local 900, 262 Ill.

App. 3d at 340-41 (finding that the timeliness of following steps in the grievance process is a

procedural question to be determined by an arbitrator as opposed to a condition precedent to

invoking a right to arbitration that may be resolved by the courts).

¶ 17 Here, plaintiff raised a defense to arbitration, namely that defendant forfeited its right to

arbitrate a grievance by failing to timely follow the steps outlined in section 14.8 of the CBA. We

agree with the parties that the question of whether defendant forfeited its right to arbitration is a

procedural question to be resolved by the arbitrator, not the circuit court, and that the circuit court’s

judgment staying arbitration was in error and should be reversed.

¶ 18 Finally, defendant argues that the circuit court erred by denying its motion to dismiss.

Plaintiff responds that we lack jurisdiction to consider that aspect of the circuit court’s judgment

because the denial of a motion to dismiss is not a final and appealable order and cannot be reviewed

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in an interlocutory appeal under Rule 307(a)(1). Defendant has not responded to plaintiff’s

argument. Given the parties’ agreement that plaintiff’s complaint has not identified a right to

injunctive relief for staying arbitration, we find it unnecessary to decide this question and that the

appropriate action is to remand to the circuit court and order the parties to proceed to arbitration.

¶ 19 III. CONCLUSION

¶ 20 For the foregoing reasons, the judgment of the circuit court of Cook County enjoining

arbitration is reversed, and we remand to the circuit court for further proceedings consistent with

this opinion.

¶ 21 Reversed and remanded.