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Basak v. Asplundh Tree Expert Co.

OPINION FILED DECEMBER 27, 1983.

RICHARD

v.

BASAK, PLAINTIFF-APPELLEE,

v.

ASPLUNDH TREE EXPERT COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County; the Hon. Leonard Brody, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 26, 1984.

Defendant, Asplundh Tree Expert Company, brings this appeal pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308), urging the circuit court of McHenry County erred in denying its motion for summary judgment. This court allowed defendant's petition for leave to appeal, and after consideration of the issues certified for review, we affirm the trial court's denial of the motion for summary judgment.

On March 3, 1982, plaintiff, Richard V. Basak, filed suit against defendant seeking compensatory and punitive damages resulting from his alleged retaliatory discharge for the filing of a workers' compensation claim. Defendant answered plaintiff's complaint and filed a motion for summary judgment which alleged that plaintiff had failed to exhaust the grievance procedure under a collective bargaining agreement entered into between defendant and plaintiff's collective bargaining representative. The trial court denied defendant's motion, but found that an interlocutory appeal was appropriate.

Plaintiff alleged in his complaint that he was injured in the course of his employment with the defendant, and that he received benefits under a workers' compensation claim. Approximately seven months later plaintiff was released by his doctor to return to work with defendant corporation. Plaintiff next alleged that he was refused employment in any capacity, and that his refusal was a discharge in retaliation for plaintiff having pursued his rights under the Workers' Compensation Act. Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.

There are two questions certified for review: the first is whether an employee who claims that his employer discharged him in retaliation for filing a workers' compensation claim must exhaust any remedies provided in the collective bargaining agreement entered into between the employer and the employee's collective bargaining representative before suing the employer in tort. The second assumes that the employee must exhaust such remedies. It asks whether an employee may claim that the existing contractual remedy was not available because his union membership which provided him with access to that remedy had lapsed during the period in which he was under disability. This court addressed the first issue in Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App.3d 396, 449 N.E.2d 203, and held in accordance with Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App.3d 402, 407 N.E.2d 95, and Deatrick v. Funk Seeds International (1982), 109 Ill. App.3d 998, 441 N.E.2d 669, that an employee may not sue an employer in tort for retaliatory discharge for filing a workers' compensation claim where he is protected by a collective bargaining agreement's grievance procedure and he fails to exhaust those remedies. This court rejected the holding in Wyatt v. Jewell Cos. (1982), 108 Ill. App.3d 840, 439 N.E.2d 1053, and a dissent in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App.3d 402, 407 N.E.2d 95, which would allow an employee to sue his employer in a tort action for retaliatory discharge because such an action constitutes a separate and distinct remedy from any contractual remedies existing in the collective bargaining agreement.

• 1 Thus, the first question certified for appeal has been answered by the holding set forth in Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App.3d 396, 449 N.E.2d 203. Plaintiff must exhaust his remedies under the grievance procedure prior to filing a claim for retaliatory discharge. However, Suddreth did not address the second question raised herein, and after setting forth the factual basis for this case we discuss that issue below.

The facts of this case show that plaintiff sustained an accidental injury on August 30, 1979, arising out of his employment with defendant. His complaint shows that he filed a workers' compensation claim on September 13, 1979, and, that on March 9, 1980, defendant refused to permit him to return to work when he attempted to do so. Defendant filed a motion for summary judgment on July 6, 1982, stating that since plaintiff failed to follow the grievance procedure set forth in the collective bargaining agreement to which plaintiff and defendant were bound, he is barred from pursuing an action in tort until he has exhausted his contractual remedy pursuant to that agreement.

The agreement sets forth a grievance procedure to be utilized "[s]hould any difference arise under this agreement between an Employee or a group of Employees and a representative of the Employer, involving the application or interpretation of any provision or provisions of this Agreement, * * *." According to the agreement, if a grievance is not presented within one week following its occurrence, the grievance is deemed not to exist. The agreement also gives the employer control to discharge an employee for "proper cause." It makes union membership a condition of employment and allows the employer to deduct an employee's monthly union dues and remit them to the union when so authorized in writing by the employee.

Plaintiff filed a response on July 30, 1982, stating that defendant stopped paying plaintiff's union dues after October 1979, and that defendant notified the union that plaintiff had quit as of October 1979, thus terminating plaintiff's union membership and access to the grievance procedure. Plaintiff attached to his response portions of his union's constitution and rules which provide that no member is entitled to notice of arrearages in his dues but must take notice when payments are due; and that a member working under an agreement requiring monthly payment of dues, as in the instant cause, has a grace period of 21 days after the first of the month following an indebtedness before being dropped from membership and cannot become a member in good standing again except by joining as a new member. The business manager of the union, Fred Smith, swore an affidavit in which he stated that the union has the policy to terminate union membership when a member terminates employment and no longer pays dues and that any such member who renews employment with the same employer at a later date must comply with any provisions of the collective bargaining agreement regarding becoming a new union member. According to the agreement, a new employee for defendant does not have access to the grievance procedure until he has served a 90-day probationary period.

Defendant filed a reply memorandum on January 17, 1983, in which it stated that plaintiff had the duty to pay his union dues once he discontinued receiving monthly paychecks because the agreement requires the employer only to deduct union dues from an employee's paycheck. Hence, if the employee no longer received a paycheck, no deduction could be made. Furthermore, defendant stated that according to the agreement, an employee cannot engage in activity for the purpose of defeating or evading the terms of the agreement.

The deposition of Fred Smith attempts to interpret and clarify the procedure and rights of an employee where that employee's employer discontinues payment of the employee's union dues. Smith stated that where an employee no longer receives a monthly paycheck, the employer normally does not pay the union dues, but rather the member would pay those dues. An employee who fails to pay these dues loses the right to use the collective bargaining agreement's grievance procedures, so that if an employer refuses to hire an employee who was not working while under disability, the union could not do anything to protect the employee. He also stated that when an employee is out of work and receiving workers' compensation, everyone assumes that he will get his job back and that normally, once an employee is reemployed, he will begin paying union dues again. Once dropped from the union membership rolls, the employee would have to rejoin the union, and once he begins work again, he could use the grievance procedure. An employee who contemplates being out of work may maintain his union status by being placed on "leave of absence" for a $5 charge without being required to pay monthly dues. Once he started paying dues again, and started to work, he could file a grievance.

The trial court denied defendant's summary judgment motion and defendant then moved for an interlocutory appeal and filed a petition for leave to appeal with this court.

As stated earlier, the first issue certified for appeal has been resolved in this court's decision in Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App.3d 396, 449 N.E.2d 203. Since the agreement in the instant case, as did the agreements in Suddreth, Deatrick v. Funk Seeds International (1982), 109 Ill. App.3d 998, 441 N.E.2d 669, and Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App.3d 402, 407 N.E.2d 95, sets forth a grievance procedure whereby a discharged employee may contest whether his discharge was for "proper cause," that issue need not be discussed here. Rather, the relevant inquiry is whether those holdings bar an employee from maintaining a retaliatory discharge action where he ...


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