Bethany Krajelis Apr. 2, 2013, 4:59pm

The Fifth District Appellate Court on Monday reversed a St. Clair County ruling that upheld an arbitration decision over the termination of a village employee based on residency.

In its unpublished order, the appeals panel held that St. Clair County Associate Judge Richard Aguirre erred when he affirmed an arbitrator’s determination that the Village of Dupo was justified in discharging Jason Garrett.

Justice James Wexstten delivered the judgment of the court. Justices Stephen Spomer and Melissa Chapman concurred.

In reversing Aguirre’s ruling, the panel held that the arbitrator’s decision was “based on municipal code” and failed “to draw its essence” from the collective bargaining agreement between the village and the International HOD Carriers Building and Common Laborers' Union of America, Local No. 100.

“We conclude from the face of the award that the arbitrator was so mistaken as to the law that, if apprised of his mistake, he would have ruled differently,” Wexstten wrote, noting that “arbitrator committed a gross error of law” that required reversal.

The court’s order stems from a grievance the union filed on behalf of Garrett, who worked as a Dupo police officer from 2003 to 2005 and then as a laborer with the village’s public works department  from 2005 until his 2010 termination.

In July 2010, Garrett moved outside of Dupo to the Village of Freeburg to find “educational resources for his special-needs son,” the panel’s order states.

A month later, the village sent a notice to Garrett stating that he had “vacated the office of utility employee by moving outside the limits of the village” in violation of the Village Code and that a hearing had been set “to determine just cause for” his discharge.

During his employment with the village, Garrett was a member of the plaintiff union, “a labor organization that serves as the exclusive bargaining representative of the Village laborers, including Garrett,” the order notes.

According to the appellate court’s order, the collective bargaining agreement that was in effect at the time of Garrett’s termination was executed in 2008 and did not contain a clause with a residency requirement for village laborers.

The village, however, in 1980 adopted an ordinance that required village employees to be Dupo residents within six months of being hired, the order notes.

Following the hearing, the village determined that Garrett violated its residency requirement and therefore, was justified in terminating him, a decision that spurred the union to file a grievance.

The matter then went to arbitrator James P. O’Grady, who presided over the April 2011 arbitration hearing.

At that hearing, Village Mayor Ron Dell “acknowledged that the bargaining unit predated the village residency ordinance,” the order states. He also testified that all of the village’s employees except Garrett lived in Dupo and that the village’s residency requirement was “pretty much common knowledge.”

In May 2011, O’Grady denied the union’s grievance and ruled in favor of the village.

He found that the village was justified in terminating Garrett because he admitted to living outside village limits and that the parties’ collective bargaining agreement required laborers to live within village limits.

O’Grady further determined that the union never requested negotiations over the residency requirement, which he found was not a mandatory subject of bargaining for employees other than police officers and therefore, could be “unilaterally implemented.”

The union then filed a motion to vacate O’Grady’s decision in the St. Clair County Circuit Court. Aguirre denied the motion in April 2012, finding among other factors, that the 1980 ordinance predated the collective bargaining agreement.

On behalf of the appeals panel, Wexstten wrote that “By incorporating the residency requirement into section 10 of the agreement, the arbitrator improperly amended the [collective bargaining agreement], altering its provisions to allow the Village to unilaterally implement a mandatory subject of bargaining.”

He added, “Such a unilateral change is unlawful because it frustrates the statutory objective to establish working conditions through bargaining.”

The collective bargaining agreement between the village and the union “could have expressly provided that laborers must reside within village limits, but it did not,” Wexstten wrote, explaining that the village instead, adopted an ordinance on residency.

“By terminating Garrett on this basis, the Village implemented this unilateral rule on Union members, even though the Union members did not bargain for this rule or agree to its incorporation into the CBA,” he wrote. “Such unilateral implementation of a mandatory subject of bargaining can constitute an unfair labor practice.”

In reversing the decisions of O'Grady and Aguirre, the appellate court remanded the matter “for further proceedings to determine Garrett’s remedy.”

According to the Fifth District clerk’s office, Belleville attorney Kevin Kaufhold represented the union and Mark Peebles, also of Belleville, represented the village.

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