Western Illinois University v. Illinois Educational Labor Relations Board , 2021 IL 126082 ( 2021 )

2021 IL 126082IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126082)
WESTERN ILLINOIS UNIVERSITY, Appellee, v. THE ILLINOIS EDUCATIONAL
LABOR RELATIONS BOARD et al., Appellants.
Opinion filed October 21, 2021.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Theis, Michael J. Burke, Overstreet, and Carter concurred in the
judgment and opinion.
Justice Neville dissented, with opinion, joined by Chief Justice Anne M. Burke.
OPINION
¶1 The Illinois Educational Labor Relations Board (Board) found that Western
Illinois University (University) committed an unfair labor practice in violation of
section 14(a)(8) and, derivatively, section 14(a)(1) of the Illinois Educational Labor
Relations Act (Act) (115 ILCS 5/14(a)(1), (8) (West 2016)) by failing to comply
with two arbitration awards. On administrative review, the appellate court vacated
the Board’s decision and remanded with directions. 2020 IL App (4th) 190143.
¶2 In reviewing the decision of the Board, we consider whether an arbitrator in the
public educational labor relations context exceeds his authority by reviewing a
party’s compliance with his own award in contravention of the Act, which vests
exclusive primary jurisdiction over arbitration awards with the Board. We also
consider whether the Board may limit the evidence it will consider in an unfair
labor practice proceeding under the Act to the evidence before the arbitrator. We
hold that an arbitrator does exceed his authority in conducting such a review and
that the Board may not limit the evidence in this way. Accordingly, we vacate the
Board’s decision and remand with directions to consider all evidence relevant to
whether the University violated section 14(a)(8) and, derivatively, section 14(a)(1)
of the Act.
¶3 BACKGROUND
¶4 The Act governs labor relations between public education employers and
employees. 115 ILCS 5/1 et seq. (West 2016). Among other things, the Act requires
that public education employers and employees collectively bargain, reduce their
collective bargaining agreement (CBA) to writing, and arbitrate disputes that arise
under the agreement. Id. § 10. Refusal to comply with the provisions of a binding
arbitration award is an “unfair labor practice” under the Act. Id. § 14. The Act’s
“unfair labor practice procedures” assign review and enforcement of unfair labor
practices to the Board. Id. § 15.
¶5 Arbitrators acting pursuant to the Act—and, indeed, arbitrators acting across
varying contexts and jurisdictions—routinely retain limited jurisdiction of their
awards for the sole purpose of resolving remedial issues that may arise from the
award itself. See Am. Bar Ass’n, Elkouri & Elkouri: How Arbitration Works, 7-49
to 7-54 (Kenneth May ed., 8th ed. 2016) (hereinafter How Arbitration Works). This
retained jurisdiction is sometimes referred to as “remedy jurisdiction.” The classic
example of remedy jurisdiction in action is where an arbitrator orders a party to be
“made whole.” If the parties cannot agree on the particulars of what is required to
make the party whole, they may petition the arbitrator for an explanation. The
arbitrator may then exercise his retained jurisdiction to specify what must be done.
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¶6 In this case, an arbitrator exercised this remedy jurisdiction specifically to
determine whether a party had complied with his earlier award. We must decide
whether this exercise of remedy jurisdiction conflicted with the language and
procedures of the Act, which vests exclusive primary jurisdiction over compliance
review of arbitration awards with the Board. Board of Education of Warren
Township High School District 121 v. Warren Township High School Federation
of Teachers, Local 504, 128 Ill. 2d 155, 166 (1989); Board of Education of
Community School District. No. 1 v. Compton, 123 Ill. 2d 216, 221 (1988). With
this general background in place, we turn to the facts.
¶7 University Layoffs and Arbitration Proceedings
¶8 In response to declining enrollment, the University laid off 19 professors
throughout the 2016-17 school years. Ten of the laid off professors, represented by
University Professionals of Illinois, Local 4100, IFT-AFT, AFL-CIO (Union), filed
grievances pursuant to the parties’ CBA. The Union alleged that the University had
not followed the proper procedures outlined in the CBA for laying off these
professors. The grievances proceeded to arbitration.
¶9 The arbitrator issued his original award on July 6, 2017. In this award, the
arbitrator noted that the parties agreed on the following issue: “Did the University
violate the Parties[’] Collective Bargaining Agreement when it laid off [the 10
grievants]? If so, what is the appropriate remedy?” Relevant here, the arbitrator
found that the University violated the CBA as to Dr. Daniel Ogbaharya by failing
to properly consider the factors required by the CBA in coming to its layoff
decision. The arbitrator ordered that Dr. Ogbaharya be made whole for the 2016-
17 school year and that the University reevaluate its layoff decision by properly
considering all factors set forth in the CBA. The arbitrator also found that the
University violated the CBA as to Dr. Holly Stovall by failing to make a reasonable
effort to locate other equivalent employment within the University prior to the
effective date of her layoff. The arbitrator ordered the University to make a
reasonable effort in this regard and report back to Dr. Stovall on this effort. At the
close of the award, the arbitrator stated he “shall retain Jurisdiction for no less than
90 days to resolve any issues regarding the implementation of this Award.”
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¶ 10 On September 12, 2017, the Union’s attorney sent an e-mail to the arbitrator,
which opened:
“In your Arbitration Award in this case, you retained jurisdiction for no less
than 90 days to resolve any issues regarding the implementation of the Award.
On behalf of the Union, I am writing to invoke your remedy jurisdiction. As set
forth below, the Union believes that the University has not complied with the
Award in this case.”
A few days later, the University responded with documentation purporting to detail
its compliance and stated its position “that no further proceedings are warranted.”
¶ 11 A series of e-mail exchanges ensued over the next few months. The Union
continued to invoke the arbitrator’s remedy jurisdiction in its request for a hearing
on whether the University complied with the award. The University argued that the
arbitrator lacked statutory authority to determine compliance because the Board
was vested with exclusive primary jurisdiction over such review by the Act. It also
argued that the arbitrator lacked contractual authority under the terms of the CBA
to review its compliance with an earlier award. The Union replied that taking the
matter to the Board was not required at this time because the arbitrator had retained
jurisdiction over the remedy and such retention was proper. Near the end of this set
of e-mails, the Union sought to clarify its position that it was asking the arbitrator
to “resolve issues regarding the implementation of the award.”
¶ 12 The arbitrator decided to hold a hearing:
“The University contends it implemented the Award. The Union contends it did
not. The issue being raised by the Union is whether there was implementation
of the Award. That is an issue that cannot be resolved without a hearing. It is,
however, not a new issue, which I could not decide, but part of the original issue
the parties authorized this Arbitrator to decide. On that basis, the Arbitrator
grants the Union’s request for a hearing over the implementation of the Award
regarding the four Grievants at issue. They are Hijar, Sellen, Stovall, and
Ogbahara [sic]. The issue on all four is whether the University implemented the
directives of the Award.”
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¶ 13 On January 2, 2018, two weeks before the scheduled hearing, the Union filed
an unfair labor practice charge with the Board alleging the University violated
section 14(a)(8) and (1) of the Act by refusing to comply with the original award.
¶ 14 On January 16, 2018, the arbitrator held the hearing with both parties in
attendance. The arbitrator noted the University’s objection to his authority but
proceeded with the hearing, stating, “what we are here today is on the Union’s
contention that with regard to those four grievants, that the University has failed to
comply with the requirements of my earlier award.” Following the hearing, the
parties filed briefs repeating their arguments.
¶ 15 On March 5, 2018, the arbitrator issued a “supplemental award.” In it, he found
that the University “failed to comply with the Award” as to Dr. Ogbaharya and had
“violated the Award” as to Dr. Stovall. The arbitrator ordered that Dr. Ogbaharya
be offered reinstatement and be made whole until offered reinstatement. As to Dr.
Stovall, the arbitrator found that there were open classes she could have taught in
the fall semester of 2017, and the arbitrator ordered that she be made whole for that
semester. The arbitrator also directed that “[s]he should have been offered work for
the Spring Semester and the 2018-9 year if the same factors were present.” The
supplemental award ended: “The Arbitrator shall continue to retain jurisdiction as
to the remaining two Grievants to resolve any questions regarding the
implementation of this Supplemental Award.”
¶ 16 On March 8, 2018, the Union amended its unfair labor practice charge to
include the University’s refusal to comply with the supplemental award.
¶ 17 On March 29, 2018, the Union asked the arbitrator for a second supplemental
award finding that certain classes were available for Dr. Stovall to teach in the
spring semester of 2018 and beyond and that she should therefore be made whole
and/or offered employment. In response, the University disputed these facts and
pointed out that the matter was currently pending before the Board. The Union
replied that the arbitrator’s retained jurisdiction allowed him to rule on this second
supplemental award. The arbitrator concluded that the best course of action was to
let the Board rule on the pending charges and make a determination on his authority.
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¶ 18 Board and Appellate Proceedings
¶ 19 The matter proceeded to the Board. An administrative law judge (ALJ) first
conducted a hearing on the complaint. At the hearing, the University sought to
introduce certain witness testimony related to its compliance with the original
award. The Union objected, arguing that this testimony had not been presented to
the arbitrator and therefore the Board could not consider it. The ALJ allowed the
testimony to be included in the record. Finding no determinative issues of fact that
required a recommended decision, the ALJ removed the case to the Board for a
decision.
¶ 20 The Board concluded that the University had violated section 14(a)(8) and,
derivatively, section 14(a)(1) of the Act by refusing to comply with both awards.
As to the supplemental award, the Board recognized its “exclusive primary
jurisdiction over whether an employer has complied with an arbitration award” but
concluded that the arbitrator’s compliance review, conducted pursuant to his
remedy jurisdiction, did not conflict with that authority. Thus, the arbitrator did not
exceed his statutory authority. The Board also determined that the arbitrator did not
exceed his contractual authority because the supplemental award “did not involve
a new issue, but [was] part of one of the issues the parties originally agreed to
arbitrate, that is, what should the remedy be.” Consequently, the supplemental
award was binding, and the University committed an unfair labor practice in
refusing to comply. As to the original award, the Board refused to consider the
University’s new evidence, stating that, in reviewing an award, “evidence which
was not before the arbitrator may not be considered.” It therefore deferred to the
arbitrator’s decision that the University failed to comply and held that the
University committed an unfair labor practice.
¶ 21 On direct administrative review, the appellate court found differently. 2020 IL
App (4th) 190143. It held that the arbitrator exceeded his statutory authority in
issuing the supplemental award because the exercise of remedy jurisdiction to
review a party’s compliance conflicted with the Board’s exclusive primary
jurisdiction over compliance review. The court saw no meaningful distinction
between “implementation” and “compliance review” in what the arbitrator did here.
The court also held that the arbitrator exceeded his contractual authority by going
beyond the “precise issue” presented to him in the original award to reach a new
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issue in the supplemental award, contrary to the express terms of the CBA itself.
Finally, the court concluded the Board erred in refusing to consider the University’s
new evidence because the Board has a statutory duty to consider such evidence in
determining whether an unfair labor practice has been committed. It therefore
vacated the Board’s opinion and remanded with directions that the Board consider
all evidence relevant to whether the University complied with the original award.
¶ 22 The Union, joined by the Board, now appeals to this court. Ill. S. Ct. R. 315
(eff. Oct. 1, 2019). We allowed the Illinois Education Association to file an amicus
brief. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 23 ANALYSIS
¶ 24 Issues Presented
¶ 25 The ultimate issue before this court is whether the Board properly found that
the University violated section 14(a)(8) and, derivatively, section 14(a)(1) by
refusing to comply with the arbitrator’s original and supplemental awards. As laid
out in its opinion and order, the Board considers three factors when determining
whether an employer has violated section 14(a)(8): “(1) whether the arbitration is
binding, (2) what is the content of the award, and (3) whether the employer has
complied with the award.” University Professionals of Illinois, Local 4100, 35
PERI ¶ 133 (IELRB 2019).
¶ 26 The University admits it did not comply with the supplemental award but argues
the award was not binding because the arbitrator lacked statutory and contractual
authority to issue it. As to the original award, the University contends it did comply
and that the Board improperly excluded relevant evidence in reaching its conclusion
to the contrary.
¶ 27 The Union and Board argue that the arbitrator had both statutory and contractual
authority to issue the supplemental award and therefore the supplemental award
was binding. In making these arguments, they rely heavily on a number of foreign
and secondary authorities for support. They also argue that the Board properly
limited the evidence under review to the record before the arbitrator in reviewing
compliance with the original award.
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¶ 28 Thus, to resolve the ultimate issue we must consider whether the Act prevents
an arbitrator from conducting a compliance review, whether the arbitrator in this
case actually conducted a compliance review, and whether the Board may limit its
evidentiary review of an unfair labor practice to the record before the arbitrator.
¶ 29 Standard of Review
¶ 30 Judicial review of the Board’s decision is taken directly to the appellate court
and is governed by the Administrative Review Law (735 ILCS 5/3-101 et seq.
(West 2016)). 115 ILCS 5/16 (West 2016). On administrative review, this court
reviews the decision of the agency, here the Board, rather than that of the appellate
court. Board of Education of the City of Chicago v. Illinois Educational Labor
Relations Board, 2015 IL 118043, ¶ 14. Review extends to all questions of law and
fact presented by the record. 735 ILCS 5/3-110 (West 2016). The standard of
review is determined by the question presented. Chicago, 2015 IL 118043, ¶ 14.
An agency’s findings of fact will be deemed prima facie true and correct unless
they are against the manifest weight of evidence. Id. ¶ 15. An agency’s findings on
questions of law are reviewed de novo. Id. A mixed question of law and fact is
reviewed for clear error. Id. ¶ 16.
¶ 31 Statutory Construction
¶ 32 We first address the Act itself. Whether the Act vests the Board with exclusive
jurisdiction—even as to arbitrators—over compliance review of a binding
arbitration award is a question of statutory interpretation. An issue of statutory
interpretation presents a question of law subject to de novo review. Dew-Becker v.
Wu, 2020 IL 124472, ¶ 12. A reviewing court is not bound by an agency’s
interpretation of a statute. Chicago, 2015 IL 118043, ¶ 15. However, in construing
the Act, we have recognized that the Board’s interpretation remains relevant where
there is a reasonable debate about the meaning of a statute. Id.¶ 33 The fundamental rule of statutory interpretation is to ascertain and give effect
to the legislature’s intent, and the best indicator of that intent is the statutory
language, given its plain and ordinary meaning. Cooke v. Illinois State Board of
Elections, 2021 IL 125386, ¶ 52. The statute must be viewed as a whole, and as
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such, this court construes words and phrases not in isolation but relative to other
pertinent statutory provisions. State ex rel. Leibowitz v. Family Vision Care, LLC,
2020 IL 124754, ¶ 35. No part of a statute should be rendered meaningless or
superfluous. Rushton v. Department of Corrections, 2019 IL 124552, ¶ 14. “Courts
should not attempt to read a statute other than in the manner it was written.” People
ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 185 (2009). “Where the statutory
language is clear and unambiguous, the plain and ordinary meaning of the words
will be given effect without resorting to extrinsic aids for construction (e.g., statutes
from other States).” Board of Education of Rockford School District No. 205 v.
Illinois Educational Labor Relations Board, 165 Ill. 2d 80, 87 (1995). We will not
read into the statute exceptions, conditions, or limitations that the legislature did
not express. Jackson-Hicks v. East St. Louis Board of Election Commissioners,
2015 IL 118929, ¶ 21.
¶ 34 “We likewise keep in mind the subject addressed by the statute and the
legislature’s apparent intent in enacting it.” Cooke, 2021 IL 125386, ¶ 52. The Act
revolutionized Illinois school labor law. Compton, 123 Ill. 2d at 219. Adopted in
the same legislative session as the Illinois Public Labor Relations Act (Labor
Relations Act) (5 ILCS 315/1 et seq. (West 2020)), the two acts together provide a
comprehensive regulatory scheme for public sector bargaining in Illinois. Compton,
123 Ill. 2d at 221. Whereas the Labor Relations Act governs labor relations between
most public employers and employees, the Act specifically governs public
educational employers and employees. Finding that unresolved educational labor
disputes were “ ‘injurious to the public,’ ” the legislature determined that
“ ‘adequate means must be established for minimizing them and providing for their
resolution.’ ” Id. at 220 (quoting Ill. Rev. Stat. 1985, ch. 48, ¶ 1701). To achieve
these ends, the Act created rights and duties unknown at common law, including
compelled arbitration of grievances. Warren, 128 Ill. 2d at 166; Compton, 123 Ill.
2d at 220.
¶ 35 With these principles in mind, we turn to the text of the Act. The parties
specifically identify section 14(a)(8) as the language at issue: “Refusing to comply
with the provisions of a binding arbitration award.” 115 ILCS 5/14(a)(8) (West
2016). To determine the legal effect of this section on the exclusive or inclusive
nature of the Board’s authority, we must read it in context with the other relevant
portions of the statute.
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¶ 36 Section 1 announces the purpose and policy of the Act. Id. § 1. The Act’s
purpose is to “promote orderly and constructive relationships between all
educational employees and their employers” and “to regulate labor relations
between educational employers and educational employees, including the ***
resolution of disputes arising under collective bargaining agreements.” Id. The
legislature recognized the “substantial differences” in educational labor relations
and concluded “that such differences demand statutory regulation of collective
bargaining between educational employers and educational employees in a manner
that recognizes these differences.” Id. Consequently, “the General Assembly has
determined that the overall policy may best be accomplished by [among other
things] establishing procedures to provide for the protection of the rights of the
educational employee, the educational employer and the public.” Id.
¶ 37 Section 10 requires educational employers and unions to bargain collectively
and to reduce their agreement to writing. Id. § 10(a), (d). It also requires the
agreement to “contain a grievance resolution procedure which shall apply to all
employees in the unit and shall provide for binding arbitration of disputes
concerning the administration or interpretation of the agreement.” Id. § 10(c). The
parties “shall not effect or implement a provision in a collective bargaining
agreement if the implementation of that provision would be in violation of, or
inconsistent with, or in conflict with any statute or statutes enacted by the General
Assembly of Illinois.” Id. § 10(b).
¶ 38 Section 2(h) defines “unfair labor practice” or “unfair practice” as “any practice
prohibited by Section 14 of this Act.” Id. § 2(h). Section 14(a)(8) prohibits
employers from refusing to comply with the provisions of a binding arbitration
award. Id. § 14(a)(8). Thus, refusal to comply with a binding arbitration award is
an unfair labor practice.
¶ 39 Section 15 outlines the “unfair labor practice procedure.” Id. § 15. It provides:
“A charge of unfair labor practice may be filed with the Board by an employer, an
individual or a labor organization.” Id. If after investigation the Board finds that the
charge states an issue of law or fact, it is directed to serve a complaint against the
charged party. “At hearing, the charging party may also present evidence in support
of the charges and the party charged may file an answer to the charges, appear in
person or by attorney, and present evidence in defense against the charges.” Id. The
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Board possesses the power to issue subpoenas and administer oaths. It may also
apply to the circuit court for an order to compel attendance at the hearing to testify
or to produce requested documents. If the Board finds that an unfair practice has
been committed, it will order the party to cease the practice and may take other
affirmative action to provide a remedy. The Board may also petition the circuit
court for orders enforcing its decisions, including but not limited to orders for
injunctions. Id.
¶ 40 Notably, the Act does not provide for automatic review of an arbitration award.
Compton, 123 Ill. 2d at 226. Instead, this court has recognized that the appropriate
method for challenging the validity of an arbitration award is to refuse to comply
with the award and then litigate the dispute in an unfair labor practice proceeding
before the Board. Griggsville-Perry Community Unit School District No. 4 v.
Illinois Educational Labor Relations Board, 2013 IL 113721, ¶ 13. Thus,
regardless of whether a party seeks to enforce or challenge an award, the matter is
brought to the Board for review after the filing of an unfair labor practice charge
alleging refusal to comply with a binding arbitration award.
¶ 41 The plain language of the statute yields a natural and reasonable chain of
procedures that leads us to conclude it vests exclusive primary jurisdiction over
compliance review of arbitration awards to the Board: The legislature established a
specific procedure to govern the unique nature of educational labor relations,
intending to protect the rights of all parties and the well-being of the public. That
procedure includes compelled arbitration and Board oversight of compliance with
that arbitration. Review over “refusal” to comply with an arbitration award includes
review over “failure” to comply, as there is no other way to trigger review of an
arbitration award in the public educational labor relations context. Refusal or failure
to comply with an award is specifically designated an unfair labor practice, and the
Act lays out specific unfair labor practice procedures, which provide that the
Board—not the arbitrator—will investigate, hold hearings, and make a
determination on compliance. The statutory language does not allow for any other
entity, including the original arbitrator, to make a substantive review of compliance
with a binding award in the first instance. That duty, responsibility, and authority
lies exclusively with the Board.
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¶ 42 We conclude the Act is plain and unambiguous. The statute must therefore be
applied as written without resort to extrinsic aids of statutory construction, and we
will not read into it exceptions, conditions, or limitations that the legislature did not
express. Regardless of how compliance with binding arbitration awards is reviewed
in other arbitration contexts, the Act provides that such review lies, in the first
instance, with the Board in the unique setting of public educational labor relations.
¶ 43 The Board and Union argue that the Act is silent on the issue and so the Board
correctly turned to various secondary and foreign authorities for guidance. It is true
that the Act does not expressly state where the arbitrator’s authority begins and
ends in the educational labor arbitration context, but the Act does speak to the
Board’s authority. As we have shown, there are multiple provisions that when read
together clearly vest exclusive authority over compliance review with the Board,
regardless of whether that scheme might be unique compared to other arbitration
contexts. Consequently, the arbitrator’s authority is necessarily limited.
¶ 44 In the same vein, the Board and Union argue that the Act is ambiguous. To
resolve this ambiguity, they rely on the aforementioned secondary and foreign
authorities from across a wide array of jurisdictions and arbitration contexts: Illinois
commercial arbitration law, federal labor law, Pennsylvania caselaw interpreting
the Pennsylvania Public Employee Relations Act (43 Pa. Cons. Stat. § 1101.201et seq. (2020)), and a leading treatise on arbitration. E.g., Hollister Inc. v. Abbott
Laboratories, 170 Ill. App. 3d 1051, 1057-60 (1988) (upholding the exercise of
retained jurisdiction to implement an award where commercial arbitrators issued a
nonfinal award directing the parties to negotiate over a contractual term and then
issued a second award after negotiations failed); CUNA Mutual Insurance Society
v. Office & Professional Employees International Union, Local 39, 443 F.3d 556,
565 (7th Cir. 2006) (stating “there is an abundance of case law in both this circuit
and other circuits that recognizes the propriety of an arbitrator retaining jurisdiction
over the remedy portion of an award”); Greater Latrobe Area School District v.
Pennsylvania State Education Ass’n, 615 A.2d 999, 1004-05 (Pa. Commw. Ct.
1992) (holding that the arbitrator’s retention of jurisdiction was a procedural matter
within the exclusive province of the arbitrator); How Arbitration Works, supra, at
7-50 (“[I]n virtually all cases of grievance arbitration where a remedy is called for,
labor arbitrators ought to routinely retain jurisdiction of the award solely for the
purposes of resolving any disputes among the parties regarding the meaning,
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application, and implementation of that remedy.” (Internal quotation marks
omitted.)). In their view, the clear consensus across multiple contexts is that
arbitrators have the authority to retain jurisdiction over the implementation of an
award.
¶ 45 We find no ambiguity. Extrinsic sources of statutory meaning, such as
legislative history, secondary sources, and foreign authorities, are meant to “ ‘clean
up ambiguity, not create it.’ ” Roberts v. Alexandria Transportation, Inc., 2021 IL
126249, ¶ 48 (quoting Milner v. Department of the Navy, 562 U.S. 562, 574
(2011)); compare Rockford, 165 Ill. 2d at 88 (declining to consider foreign authority
in construing the Act where the language is clear and unambiguous), with Central
City Education Ass’n v. Illinois Educational Labor Relations Board, 149 Ill. 2d
496, 509, 512-23 (1992) (consulting multiple extrinsic sources in order to resolve
a conflict between two sections of the Act).
¶ 46 The Board and Union’s argument regarding the legitimacy of remedy
jurisdiction misses the mark. We take no issue with an arbitrator’s general authority
to retain limited jurisdiction to resolve certain disputes arising from the remedy
portion of an arbitration award. That general authority is not being challenged here.
The challenge is much more specific: whether the exercise of remedy jurisdiction
specifically to review a party’s compliance with an arbitration award conflicts with
the exclusive primary jurisdiction of the Board under the Act.
¶ 47 Furthermore, these authorities are distinguishable. As the appellate court
pointed out, nothing like section 14(a)(8) is found in Illinois commercial arbitration
law or federal labor law. 2020 IL App (4th) 190143, ¶ 33. Thus, statutory
construction of those schemes does not require any consideration whatsoever of the
effect of section 14(a)(8)’s specific language and placement. The Board and Union
largely ignore the differences in statutory language and structure between the Act
and these authorities. Given that Illinois was one of the last major industrial states
to enact labor relations legislation—“and thus the legislature had the benefit of
reviewing the public sector experiences of other States, as well as those in the
private sector”—glaring differences like the inclusion of section 14(a)(8) cannot be
construed as anything other than intentional divergence. Central, 149 Ill. 2d at 519.
¶ 48 The Pennsylvania Public Employee Relations Act, on the other hand, does
contain a similar provision making it an unfair labor practice to refuse to comply
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with a binding arbitration award. Compare 115 ILCS 5/14(a)(8) (West 2016), with
43 Pa. Cons. Stat. § 1101.1201(a)(8) (2016). The Pennsylvania statute is germane
to this discussion because the General Assembly used the Pennsylvania experience
as a model in creating the Act. Central, 149 Ill. 2d at 513. Although we have noted
that Pennsylvania’s interpretation of its statute is relevant to our own analysis of
the Act, we have also repeatedly distinguished it where it departs from the Act’s
language and structure. E.g., id. (“The Pennsylvania statute differs from
the Illinois statute in a very important way.”); id. at 515 (“It is important to note
that precedents from our sister States are of limited value in this case because each
State’s public employment relations statute is different from the Illinois law,
although they all have a common purpose. Thus, the analysis of the law of our sister
States is relevant solely as an aid to this court in interpreting both the legislative
intent and the public policy surrounding the Illinois law.”); Compton, 123 Ill. 2d at
223 (“As for the cases involving statutes of other States, the short answer to the
appellant’s citation of these cases is that these statutes differ from ours.”).
¶ 49 Here, both statutes make refusal to comply with an arbitration award an unfair
labor practice, but the methods of reviewing arbitration awards have greatly
diverged. Pennsylvania caselaw provides for judicial review of arbitration awards
by the trial courts, whereas Illinois caselaw provides that “exclusive primary
jurisdiction” to review arbitration awards lies with the Board. Compton, 123 Ill. 2d
at 223-24 (“Our statute, in contrast [to Pennsylvania’s], provides for a specific form
of judicial review which the legislature apparently intended would exclude all
others” (referencing In re Appeal of Upper Providence Police Delaware County
Lodge No. 27 Fraternal Order of Police, 526 A.2d 315, 321 (Pa. 1987))).
¶ 50 This is no small difference, contrary to the Board’s next argument that section
14(a)(8) does not affect the substantive authority of the reviewing body but only
the identity of the reviewing body. In other words, section 14(a)(8) merely transfers
“enforcement responsibilities” from the courts (under the Pennsylvania scheme) to
the Board (under the Act’s scheme) without enlarging the Board’s authority.
Consequently, the Board continues, the Act neither adds to nor subtracts from the
arbitrator’s authority. Under this reading, “the legislature intended for the Board to
have the same role under the Act as the courts have under the Illinois Uniform
Arbitration Act.”
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¶ 51 This argument goes too far. Although it is true that the courts and the Board
fulfill a similar role when it comes to arbitration, they do not have exactly the same
scope of authority and power. In addition to all the general power and authority
conferred by rule, statute, and constitution to the circuit courts, the circuit courts
are governed specifically in arbitration by the Uniform Arbitration Act (Arbitration
Act) (710 ILCS 5/1 et seq. (West 2016)). The Board, on the other hand, is governed
primarily by the Act. The two schemes grant differing levels of power and
authority, which in turn affect the authority of the arbitrators operating within their
respective spheres. For instance, the Arbitration Act expressly exempts labor
arbitration from some of its most important enforcement provisions. E.g., id.§ 12(a), (e) (enumerating the statutory grounds for vacatur of an arbitration award
available to the circuit courts while leaving common-law grounds for vacatur
available to the Board); cf., e.g., Compton, 123 Ill. 2d at 221-22 (observing that,
although the Act’s sister statute, the Labor Relations Act, explicitly provides for
enforcement of arbitration awards in accordance with the Arbitration Act, the Act
does not).
¶ 52 Thus section 14(a)(8), when read in context with the entire statutory scheme,
does more than merely reassign the locus of enforcement responsibilities. It
necessarily affects the substance of those responsibilities as well and in turn affects
the substance of the authority of arbitrators under the Act. We therefore find the
Board’s argument and reliance on Pennsylvania caselaw unpersuasive.
Pennsylvania has interpreted its statutory provision to allow for review of
arbitration awards by the state trial courts, which affects how that provision
interacts with the rest of Pennsylvania’s statutory scheme. This court, however, has
interpreted our provision as assigning review with the Board, which alters the way
it interacts with the rest of our statutory scheme. As we have explained, one such
way this express assignment of responsibility interacts with our scheme is to grant
exclusive primary jurisdiction over compliance review of arbitration awards with
the Board.
¶ 53 This interpretation is consistent with our precedent regarding the Act and the
Board’s application of its jurisdiction. Warren, 128 Ill. 2d at 163; Compton, 123 Ill.
2d at 221 (explaining that the legislature intended to vest exclusive primary
jurisdiction over arbitration disputes with the Board). Although Compton and
Warren specifically dealt with the role of the circuit court in arbitration review, we
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recognized that the Act, in contrast to other states’ statutes, “provides for a specific
form of judicial review which the legislature apparently intended would exclude all
others.” Compton, 123 Ill. 2d at 223-24. Opinions and orders from the Board and
its ALJs routinely cite these cases in support of their exclusive jurisdiction over
arbitration awards. E.g., District 150 Educational Organization, 37 PERI ¶ 62
(IELRB 2020) (“The IELRB has exclusive jurisdiction to determine whether
arbitration awards involving public educational employers, employees, and
exclusive bargaining representatives are binding and to vacate or enforce those
awards accordingly.” (citing Compton, 123 Ill. 2d 216)). The Board recognized its
“exclusive primary jurisdiction over the issue of whether the University complied
with the original award” in this very case. University Professionals of Illinois, Local
4100, 35 PERI ¶ 133 (IELRB 2019). Furthermore, the Board’s own standard for
reviewing section 14(a)(8) violations includes reviewing “whether the employer
has complied with the award.” Id. Despite the Union’s suggestion that arbitrator’s
compliance review in this case was normal, no party has submitted any Illinois
authority involving arbitration under the Act, whether from the courts or the Board
itself, that includes an arbitrator reviewing his own award for compliance and then
issuing a supplemental award based on noncompliance.
¶ 54 This interpretation also conforms to the stated policy and purposes of the
statute. The Act seeks to minimize the societal harm caused by interminable
educational labor disputes, and our interpretation of the plain language aligns with
that aim by creating a clear, straightforward path to resolution: the arbitrator issues
an award, a party refuses or otherwise fails to comply, and the aggrieved party
brings the matter to the Board. Naturally, the Board will encounter situations where
it may feel it appropriate to refer the matter back to the arbitrator, but in making the
Board responsible for compliance review, threshold issues may be resolved from
the outset. This process promotes the “uniformity which the Act obviously seeks to
achieve” (Compton, 123 Ill. 2d at 222) and “promote[s] orderly and constructive
relationships between all educational employees and their employers” (115 ILCS
5/1 (West 2016)) because arbitration awards will follow a clear, predictable path to
the Board, whose precedential guidance will control on commonly recurring issues
across all of public education. This process also incentivizes arbitrators to issue
awards in as complete a fashion as possible as early as possible, furthering the
objective of the statute in minimizing unresolved disputes between educational
employers and employees and the injury they cause to the public. Id. If this process
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differs from those followed in other labor arbitration contexts, that is by an express
statutory design demanded by the unique differences inherent to educational labor
relations. Id.¶ 55 Whether the Arbitrator Exceeded His Authority
¶ 56 Having interpreted the statute, we must now address whether the arbitrator
actually conducted a compliance review and thereby exceeded his authority in
contravention of the Act. Whether an arbitrator exceeded his authority is a question
of law. Griggsville-Perry Community Unit School District No. 4, 2013 IL 113721,
¶ 20. We therefore review this issue de novo, without being bound by the Board’s
reasoning or conclusion. However, answering this question will require reviewing
the award itself to determine its legal effect, and “ ‘review of an arbitrator’s award
is extremely limited.’ ” Id. ¶ 18 (quoting American Federation of State, County &
Municipal Employees v. State, 124 Ill. 2d 246, 254 (1988) (AFSCME)). There is a
presumption that an arbitrator has not exceeded his authority. Rauh v. Rockford
Products Corp., 143 Ill. 2d 377, 386 (1991). “[A] court must construe an award, if
possible, as valid.” AFSCME, 124 Ill. 2d at 254. Here, however, the language used
throughout the entirety of the supplemental award and proceedings cannot be
construed as effectuating anything other than compliance review with the original
award.
¶ 57 The issue of “compliance review” was repeatedly and unavoidably cemented as
the central issue in the supplemental award, beginning in the second paragraph:
“The Union following the issuance of the Award believed the University
failed to comply with the Award regarding four of the Grievants. It filed a
Motion requesting the Arbitrator rule on whether there was compliance. The
University objected to the request. It maintained the Arbitrator lacked
Jurisdiction to rule on the issues raised by the Union.”
¶ 58 This formulation of the issue was repeated throughout the arbitrator’s analysis
regarding Dr. Ogbaharya:
“This Arbitrator in his initial award concluded that the University failed to
consider all factors set forth in [the CBA]. *** The Arbitrator directed the
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University to redo its layoff decision and look at all factors, including length of
service with the University. The University maintains it did the review
immediately after the Award was issued, and the review did not change its
decision. *** From all the facts, the Arbitrator finds the University did not make
a good faith effort to redo the layoff decision. *** When these factors are
coupled with the statements by Dr. Morgan described above the Arbitrator finds
the University did not in good faith comply with the Award.”
¶ 59 The arbitrator’s analysis regarding Dr. Stovall similarly tracked the issue of
noncompliance:
“The Arbitrator found in his initial award the University failed to make a
reasonable effort to find equivalent employment for [Dr. Stovall]. The Award
directed the University to make that effort. *** The Union contends this was
not done. For the Union to prevail on its argument that there has been non-
compliance with the Award, the Union must show two things. *** From the
above, the Arbitrator finds the University failed to comply with the
requirements of [the CBA] as to Dr. Stovall. It did not make a reasonable effort
‘to locate other equivalent employment’ for her and that work existed. *** The
original Award said: ‘if there were enough open course for any of the Grievants
to teach they should be afforded the opportunity.’ She was not afforded the
opportunity. The University thereby failed to implement the Award as it was
directed to do.”
¶ 60 The “Conclusion” paragraph made explicit that the remedies issued in the
supplemental award were based on failure to comply with the original award:
“This Arbitrator retained ‘Jurisdiction for no less than 90 days to resolve
any issues regarding the implementation of this Award.’ The Union alleged the
terms of the Award were not implemented for four of the Grievants. It asked
the Arbitrator to determine if that was so and to issue a remedy if it was found
there was a failure to follow the Award. The Arbitrator has found the Award
was not implemented as directed as to two of the Grievants. This Supplemental
Award implements the terms of the initial Award and imposes damages for the
failure of the University to follow the directives of that initial Award.”
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¶ 61 Even if we ignore the arbitrator’s analysis and focus solely on the express terms
of the remedies issued in the “Award” section, we see the same focus on compliance
review with the original award and no mention of reviewing the contract itself:
“The University violated the Award as to Holly Stovall. *** The University failed
to comply with the Award as to Danial Ogbaharya.” The remedies issued thereafter
were again clearly based on noncompliance with the original award itself.
¶ 62 The issue of compliance review originated long before the supplemental award
was handed down. The Union framed the issue as one of noncompliance with the
original award from the outset of the supplemental proceedings. The University
responded according to that understanding, and that understanding was reinforced
by the arbitrator’s repeated assertions throughout the proceedings that the issue
before him was compliance with the original award. No party asked for clarification
or correction of the original award. No misunderstanding of what was required of
the parties was raised. The only question raised concerned the University’s
compliance. It is entirely consistent and no surprise, therefore, that the arbitrator
purported to review compliance with the original award and then issued the
supplemental award using that exact language.
¶ 63 The Board itself recognized at oral argument that the arbitrator found the
University “failed to comply with the original award.” Nevertheless, it and the
Union maintain that the arbitrator’s compliance review did not conflict with the
Board’s exclusive authority. They provide a number of arguments that we find
either underdeveloped or unpersuasive.
¶ 64 First, they argue the arbitrator was merely reviewing contractual compliance
whereas the Board was reviewing statutory compliance. Beyond making this
suggestion, they did not develop this argument further. Similarly, they suggest that
the arbitrator was merely “implementing” the original award pursuant to his remedy
jurisdiction rather than conducting a “compliance review” in contravention of the
statute. In making this argument, however, they simultaneously—or perhaps
alternatively—equate the two terms. If there is a meaningful difference between
“implementation” and “compliance review,” the Board and Union did not
adequately present it for our consideration. Conclusory and underdeveloped
assertions pose an impediment to addressing these issues with any depth under
principles of party presentation. See People v. Givens, 237 Ill. 2d 311, 324 (2010)
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(“ ‘[A]s a general rule, [o]ur adversary system is designed around the premise that
the parties know what is best for them and are responsible for advancing the facts
and arguments entitling them to relief.’ ” (Internal quotation marks omitted.)
(quoting Greenlaw v. United States, 554 U.S. 237, 244 (2008))).
¶ 65 In a related argument, the Board and Union assert that the issue addressed in
the original award had not yet been resolved. Thus, the arbitrator had not yet settled
the dispute, and the supplemental award was merely an extension of the original
issue. We disagree. The issue in the original award was whether the University
improperly laid off the professors in the 2016-17 school year and, if so, what was
the appropriate remedy; the issue in the supplemental award was whether the
University complied with the original award’s remedy. The original award found a
violation of the CBA and issued a remedy; the supplemental award found a violation
of the original award and issued additional remedies. As the appellate court pointed
out, the original award directed the University to take certain actions, and by
definition, all evidence pertaining to whether the University complied with those
directions concerns actions taken after the original award was made. The two issues
may be related, but they are distinct.
¶ 66 Next, the Board and Union argue that, in the course of his compliance review,
the arbitrator necessarily interpreted and clarified the award and/or CBA,
suggesting this was a legitimate exercise of his authority. Even if these actions were
legitimate, the arbitrator did not stop there. The arbitrator expressly “coupled” these
new clarifications with a review of the University’s conduct and concluded that the
University’s actions were not sufficient to satisfy the original award. Thus, the
arbitrator went beyond mere clarification and interpretation and conducted a
compliance review in contravention of the Act.
¶ 67 Lastly, the Board and Union argue that the arbitrator interpreted the CBA as
granting him the authority to conduct a compliance review of the original award
and that “ ‘ “it is the arbitrator’s view of the facts and of the meaning of the contract
that they have agreed to accept.” ’ ” Griggsville-Perry Community Unit School
District No. 4, 2013 IL 113721, ¶ 18 (quoting AFSCME, 124 Ill. 2d at 255, quoting
United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 37-38
(1987)). Even if we accepted the arbitrator’s interpretation of the CBA, the
arbitrator still would have exceeded his authority because implementation of that
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interpretation would be inconsistent with the Act, which grants exclusive primary
jurisdiction over compliance review to the Board. 115 ILCS 5/10(b) (West 2016);
Rockford, 165 Ill. 2d at 88 (“Section 10(b) unequivocally states that any provision
in a collective-bargaining agreement that is in violation of, or inconsistent with, or
in conflict with any statute or statutes enacted by the General Assembly of Illinois
shall not be effected or implemented. *** We therefore hold that, where a provision
in a collective-bargaining agreement is in violation of, or inconsistent with, or in
conflict with any Illinois statute, section 10(b) prohibits its implementation in an
arbitration award. Under these circumstances, an arbitration award would not be
binding and could not be enforced.” (Emphasis in original and internal quotation
marks omitted.)).
¶ 68 We conclude that the supplemental award cannot be construed as effectuating
anything other than compliance review with the original award. Because such
review is committed to the Board by the Act, the arbitrator exceeded his statutory
authority. Given this holding, we need not address the other arguments related to
whether the arbitrator exceeded his contractual authority as well.
¶ 69 The Board’s Decision
¶ 70 Having answered the questions of law presented by this case, we now review
the Board’s application of that law, specifically its decision finding that the
University violated section 14(a)(8) and, derivatively, section 14(a)(1) by refusing
to comply with the original and supplemental awards. The clearly erroneous
standard of review is proper when reviewing a decision of the Board because the
decision represents a mixed question of fact and law. SPEED District 802 v.
Warning, 242 Ill. 2d 92, 112 (2011) (citing Board of Trustees of the University of
Illinois v. Illinois Labor Relations Board, 224 Ill. 2d 88, 97-98 (2007)). The Board’s
decision will be reversed as clearly erroneous only if the reviewing court, based on
the entirety of the record, is left with the definite and firm conviction that a mistake
has been committed. Board of Trustees of the University of Illinois, 224 Ill. 2d. at
97-98. “While this standard is highly deferential, it does not relegate judicial review
to mere blind deference of an agency’s order.” Id. at 98.
¶ 71 The Board determined that the supplemental award was binding and therefore
the University committed an unfair labor practice by admittedly refusing to comply
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therewith. Given our holdings above, that decision is clearly erroneous. The Act
vests exclusive primary jurisdiction over review of a party’s compliance with a
binding arbitration award to the Board. The arbitrator exceeded his authority by
attempting to exercise the Board’s exclusive authority. Thus, the supplemental
award he issued based thereon is not binding, and the University cannot have
committed an unfair labor practice by refusing to comply with a nonbinding award.
¶ 72 The Board also determined that the University refused to comply with the
original award. It came to this decision after refusing to consider evidence presented
to it for the first time, stating that review of an arbitration award must be limited to
the record that was before the arbitrator. At this point in the analysis, however, the
Board was reviewing the University’s compliance with the award rather than the
substance of the award itself. Furthermore, the Act specifically grants parties the
right to present evidence in their defense of an unfair labor practice charge to the
Board. 115 ILCS 5/15 (West 2016) (“At hearing, the charging party may also
present evidence in support of the charges and the party charged may file an answer
to the charges, appear in person or by attorney, and present evidence in defense
against the charges.”). This is reflected in the Board’s own rules: “The Complainant
shall present the case in support of the complaint. The respondent may present
evidence in defense against the charges (Section 15 of the Act).” (Emphasis in
original.) 80 Ill. Adm. Code 1120.40(e) (2017). Consequently, the Board has an
independent duty to consider any evidence presented to it that is relevant to the
determination of whether a party has refused to comply with a binding arbitration
award, regardless of whether that evidence was presented to the arbitrator. The
Board here clearly erred in doing otherwise. We note, as does the University, that
the Board may grant deference to the arbitrator’s view of the evidence where
appropriate. What it may not do is ignore evidence it is statutorily directed to
consider.
¶ 73 CONCLUSION
¶ 74 The Act vests the Board with exclusive primary jurisdiction to review
compliance with a binding arbitration award. The arbitrator here exceeded his
authority by conducting such a review in contravention of the Act. Consequently,
the supplemental award he issued is not binding, the University did not commit an
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unfair labor practice in refusing to comply with it, and the Board clearly erred in
holding otherwise. The Board also clearly erred in limiting the evidence it would
consider in determining whether the University refused to comply with the original
award. The Board’s opinion and order is vacated, and we remand to the Board with
directions to consider all evidence relevant to whether the University violated
section 14(a)(8) by refusing to comply with the original award.
¶ 75 Appellate court judgment affirmed.
¶ 76 Board decision vacated and remanded with directions.
¶ 77 JUSTICE NEVILLE, dissenting:
¶ 78 At issue in this case is the scope of an arbitrator’s “remedy jurisdiction” under
the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/1 et seq. (West
2016)). The majority acknowledges that “remedy jurisdiction” exists and its
exercise is proper to resolve remedial issues that may arise from the award itself,
such as where the arbitrator is called upon to specify what must be done. Supra ¶ 5
(citing Am. Bar Ass’n, Elkouri & Elkouri: How Arbitration Works, 7-49 to 7-54
(Kenneth May ed., 8th ed. 2016)). However, the majority concludes that the Union
improperly attempted to invoke the arbitrator’s remedy jurisdiction in this case
when it petitioned the arbitrator on September 12, 2017, with respect to the award
entered on July 6, 2017. According to the majority, the Union’s request was
prohibited by section 14(a)(8) of the Act (115 ILCS 5/14(a)(8) (West 2016)) and
was, in fact, a charge that the University had engaged in an unfair labor practice,
over which the Board has exclusive jurisdiction. I disagree.
¶ 79 When construing a statute, this court’s primary objective is to ascertain and give
effect to the intent of the legislature. Lakewood Nursing & Rehabilitation Center,
LLC v. Department of Public Health, 2019 IL 124019, ¶ 17. The best evidence of
this intent is the language of the statute, which must be given its plain and ordinary
meaning. Id. When statutory language is clear and unambiguous, a court may not
depart from the plain language and meaning of the statute by reading into it
exceptions, limitations, or conditions that the legislature did not express. Lawler v.
University of Chicago Medical Center, 2017 IL 120745, ¶ 12. Moreover, the court
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may not rewrite statutory language so that it conforms to the judiciary’s view of
orderliness and public policy. Prazen v. Shoop, 2013 IL 115035, ¶ 35; Schultz v.
Illinois Farmers Insurance Co., 237 Ill. 2d 391, 406 (2010).
¶ 80 The operative provision in this case is section 14(a)(8), which provides that
“[r]efusing to comply with the provisions of a binding arbitration award” is an
unfair labor practice. 115 ILCS 5/14(a)(8) (West 2016)). The term “refusing” is not
defined in section 14(a)(8). But the legislature’s employment of undefined terms is
commonplace, and courts frequently look to dictionary definitions to ascertain the
meaning of such terms. Barrall v. Board of Trustees of John A. Logan Community
College, 2020 IL 125535, ¶ 18. The plain and ordinary meaning of “refusing”
connotes deliberate conduct. See Webster’s Third New International Dictionary
1910 (1993) (defining refusing as “to show or express a positive unwillingness to
do or comply with,” “DENY”). In the context of section 14(a)(8), this definition
makes obvious sense. Once a party has expressed or demonstrated a positive
unwillingness to comply with the arbitration award, there is nothing more for the
arbitrator to do. As the legislature has declared, the refusal itself is an unfair labor
practice that falls within the exclusive jurisdiction of the Board.
¶ 81 In my view, that is not what occurred in this case. Here, the University did not
simply refuse to comply with the July 2017 arbitration award by denying its validity
or by expressing a positive unwillingness to comply with its provisions. Rather, the
University took steps in response to the award in an apparent—and seemingly good
faith—attempt to comply. The Union then invoked the arbitrator’s remedy
jurisdiction and requested that he address whether the University’s actions were
adequate to satisfy the terms of the award. The Union specifically asked the
arbitrator to “resolve issues regarding the implementation of the award.” In light of
these circumstances, I believe that the sufficiency of the University’s
implementation of the July 2017 arbitration award was within the arbitrator’s
remedy jurisdiction and that he correctly addressed that question by conducting a
hearing and issuing the March 2018 supplemental award.
¶ 82 The majority, however, reaches the opposite result. They do so by rewriting
section 14(a)(8). First, the majority makes the sweeping and unsupported statement
that “[r]eview over ‘refusal’ to comply with an arbitration award includes review
over ‘failure’ to comply.” Supra ¶ 41. The majority then goes even further by
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stating that “[r]efusal or failure to comply with an award is specifically designated
an unfair labor practice.” (Emphases added.) Supra ¶ 41. That, of course, is not true.
Section 14(a)(8) makes no mention of a “failure” to comply with an arbitration
award. Given that fact, it cannot be said that a “failure” to comply is “specifically
designated an unfair labor practice.” Yet, the majority inexplicably draws that
conclusion.
¶ 83 The terms “refusal” and “failure” are not synonymous. Again, the term
“refusing” indicates deliberate conduct. The term “failing,” on the other hand,
suggests behavior that may or may not be deliberate. See Webster’s Third New
International Dictionary 814 (1993) (defining failing as “to be inadequate,” “to miss
attainment,” “to neglect to do something,” “to be deficient or inadequate”). By
equating the two, the majority has inserted terms the legislature did not specify and
materially altered the statutory language. In doing so, the majority undermines the
intent of the legislature by creating an entirely new category of conduct that now
must be considered to be an unfair labor practice under the Act. This newly created
category of unfair labor practice will have far-reaching effects in future cases
because it will prevent the arbitrator from ascertaining whether the parties have
both understood and implemented the terms of an arbitration decision, and it will
generate a multiplicity of unfair labor practice proceedings before the Board that
could more easily and efficiently be resolved by the arbitrator. This court may not
“constructively” add a term or provision to a statute that the legislature plainly
chose not to include. See Zahn v. North American Power & Gas, LLC, 2016 IL
120526, ¶ 15. Any change in the statutory language must come from the legislature,
not this court. See In re Marriage of Zamudio, 2019 IL 124676, ¶ 30.
¶ 84 In the context of this case, the distinction between “refusing” and “failing” is
more than a matter of semantics. If a party to binding arbitration seeks to comply
with an arbitration decision but the efforts taken appear to be inadequate to the other
party, it is appropriate to return to the arbitrator to obtain clarification as to what is
required.
¶ 85 My colleagues in the majority justify their conclusion in this case by claiming
that it “ ‘promote[s] orderly and constructive relationships between all educational
employees and their employers.’ ” Supra ¶ 54 (quoting 115 ILCS 5/1 (West 2016)).
I disagree. The approach adopted by the majority achieves the opposite result
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because it effectively mandates that virtually all questions regarding the sufficiency
of a party’s response to an arbitration award be submitted to the Board in an unfair
labor practice proceeding. As noted above, it will generate a multiplicity of unfair
labor practice proceedings before the Board that could more easily and efficiently
be resolved by the arbitrator—the person who is in the best position to clarify what
the arbitration award required and whether the actions taken by a party bound by
the award are sufficient to satisfy its provisions. And the Board, which one would
expect to be vigilant in safeguarding its own exclusive jurisdiction, agrees that the
arbitrator had authority to consider the sufficiency of the University’s
postarbitration actions. I believe that the Board’s interpretation of the statutory
language is worth noting and is entitled to deference. See Citibank, N.A. v. Illinois
Department of Revenue, 2017 IL 121634, ¶ 39.
¶ 86 The majority acknowledges that remedy jurisdiction has a proper place in
arbitration proceedings and that an arbitrator is permitted to resolve certain disputes
arising from the remedy portion of a prior award. Yet, the majority effectively
nullifies the essence of that jurisdiction here by holding that any and all failures—
without limitation—are refusals and must be submitted to the Board in the form of
an unfair labor practice charge. The reasoning of the majority raises the question of
when, if ever, an arbitrator can actually exercise the widely recognized remedy
jurisdiction.
¶ 87 In sum, I disagree with the majority’s holding that the arbitrator lacked authority
to address the question of whether the University had adequately implemented the
July 2017 binding arbitration award and to issue the March 2018 supplemental
arbitration award. In light of the fact that the University admits it refused to comply
with the supplemental decision, I would affirm the Board’s decision finding that
the University committed an unfair labor practice in violation of section 14(a)(8)
(115 ILCS 5/14(a)(8) (West 2016)) and, derivatively, section 14(a)(1) (id.
§ 14(a)(1)) of the Act. Accordingly, I respectfully dissent.
¶ 88 CHIEF JUSTICE ANNE M. BURKE joins in this dissent.
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