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Deatrick v. Funk Seeds International





Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.


Rehearing denied November 22, 1982.

Plaintiff filed an action against defendant, his former employer, in the circuit court of McLean County alleging retaliatory discharge for filing a claim for workers' compensation. The trial court entered summary judgment for the defendant and plaintiff appeals. We affirm.

The principal issue on appeal is whether plaintiff has failed to exhaust his administrative remedies under the collective bargaining contract between his union and the defendant. We hold that he has and adopt the holding and rationale of Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App.3d 402, 407 N.E.2d 95. In Cook the appellate court reasoned that Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353, which established a cause of action for retaliatory discharge, applied to employees at will, since they possessed no other remedy; but that Kelsay did not apply to workers covered by a collective bargaining contract, since they possessed a remedy under the contract.

The facts of the case at bar place it somewhere between Kelsay and Cook. In Kelsay the plaintiff was an employee at will; in Cook the plaintiff was clearly a member in good standing of the union; in the instant case plaintiff had been dropped from the union rolls of membership for nonpayment of dues. Nevertheless, plaintiff was still a member of the bargaining unit as defined in the collective bargaining contract.

The operative facts are taken from the common law record: plaintiff was injured on the job on July 18, 1972, and remained off the job thereafter until his termination; on October 1, 1973, his doctor released him to light duty and he made several inquiries of defendant concerning work but none was forthcoming; he filed his claim for workers' compensation on January 18, 1974; after hearing before an arbitrator he was granted an award which was reviewed by the Industrial Commission and made final on April 9, 1975; meanwhile, on June 1, 1975, defendant terminated plaintiff's employment, stating that the termination was "due to injury." Plaintiff then filed the instant complaint on October 5, 1976.

The procedural history of the case is more convoluted. Some preliminary motions were filed and on September 26, 1977, the defendant answered with a general denial; no affirmative defenses were raised. On September 14, 1979, defendant was granted leave to withdraw its answer and to file a motion to strike certain allegations of the complaint relating to punitive damages; this motion was allowed and the complaint was amended by interlineation, striking those allegations. Defendant then filed a motion to dismiss which was based on Kelsay, alleging that the cause of action for retaliatory discharge did not exist at the time the complaint was filed. These latter actions took place after the supreme court's opinion in Kelsay was handed down; by agreement the parties had continued the litigation until that opinion had been received.

The motion to dismiss was taken under advisement by the trial court and was exhaustively briefed by the parties. It was ultimately denied by the trial court on November 26, 1979. Defendant then answered the complaint as amended, again setting up a general denial, but also alleging as an affirmative defense that plaintiff had not exhausted his remedies under the collective bargaining agreement.

The case then went on dead center again and showed no activity save for some sporadic discovery and pretrial calls until January 27, 1982, when defendant filed a motion for summary judgment based on Cook. The motion alleged that plaintiff had been a member and officer of the union at defendant's plant; attached to the motion were copies of the collective bargaining agreements in force from November 1970 to November 1975. The pertinent provision was contained in article III of the agreements and related to grievances. It provided:


Grievance Procedure and Arbitration

Section 1. Whenever any grievance or dispute arises out of the terms and conditions of this contract between the Company and any of its employees covered hereby, the following procedure shall be used:

(1) The employee shall attempt to settle the matter with the Superintendent of the Division involved, accompanied, if the employee desires, by one steward.

(2) If the grievance is not settled in the first step, it shall then be taken up by the steward with the Manager of the Division involved. If an agreement is reached by ...

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