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Mccolgan v. United Mine Workers





Appeal from the Circuit Court of Cook County; the Hon. William R. Quinlan, Judge, presiding.


This interlocutory appeal presents the issue whether a union owes to workers a common law duty of care which is not preempted by Federal Law. Plaintiffs, James and Deloris McColgan, brought an action in the circuit court of Cook County seeking damages for personal injuries against the United Mine Workers of America (UMW), UMW District 12, and UMW Local 1870, each as an entity and as a class; and against two companies which supply mine equipment. The circuit court dismissed plaintiffs' complaint as against all union defendants, and plaintiffs appeal.

We accept all well pleaded facts as true on a motion to dismiss. (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 329, 371 N.E.2d 634.) On November 16, 1977, plaintiff James McColgan worked as an electrician for the Zeigler Coal Company. He was repairing a drill near a "pull through curtain," a device used to control ventilation in underground mining, when he was struck by a shuttle car which traveled through the curtain. Plaintiffs allege that the unions undertook to monitor and correct unsafe mine conditions, and that the unions failed to exercise reasonable care in the performance of this undertaking. Specifically, the unions:

"a) Failed to install or cause to be installed available `pull through' curtains through which visibility was possible; or

b) Failed to warn their members including plaintiff;

c) Permitted its members, including plaintiff, to work in an area in said mine without transparent curtains; or

d) Failed to take remedial action against Zeigler Coal Co."

As a result of these negligent acts, plaintiff James McColgan was seriously injured, and plaintiff Deloris McColgan was injured derivatively.

• 1 Common law negligence consists of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by the breach. (Mieher v. Brown (1973), 54 Ill.2d 539, 541, 301 N.E.2d 307; Prosser, Torts sec. 30, at 143 (4th ed. 1971).) The existence of a duty, that is, a legal obligation to conform one's conduct to a certain standard for the benefit or protection of another, is a matter of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 555, 328 N.E.2d 538; Prosser, Torts sec. 37, at 206 (4th ed. 1971).) Illinois has recognized the principle that liability can arise from negligent performance of a voluntary undertaking (Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 74, 199 N.E.2d 769), but the scope of the duty is limited by the extent of the undertaking. Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 209-10, 399 N.E.2d 596.

• 2 Plaintiffs urge this court to impose upon the union defendants a duty to exercise reasonable care to monitor safety conditions in the mine and to correct those defects of which they know or should know. Plaintiffs point to the unions' constitutions and bylaws as well as the collective bargaining agreement to indicate that defendants voluntarily undertook responsibility for safety conditions. We have scrutinized the documents advanced by plaintiffs and considered the relationships of the parties. We find that the undertaking alleged cannot reasonably be construed to impose a duty which would extend to the unions' conduct at issue.

The collective bargaining agreement pledges the employers' and unions' joint and individual efforts to attain a safe and healthful workplace. The agreement establishes an industry-wide health and safety committee, and it provides that a "Mine Health & Safety Committee" (Committee) shall be established at each mine. The Committee is composed of mine workers who are deemed to be acting in the scope of employment within the meaning of applicable workers' compensation law. The Committee is required to inspect the mine quarterly, and is authorized to perform additional inspections. With one exception, all safety matters are subject to resolution in accordance with grievance procedures, beginning at the worker-supervisor level, rising to the company and district levels, and eventually going to arbitration. The exception reads:

"In those special instances where the Committee believes that an imminent danger exists and the Committee recommends that the Employer remove all Employees from the involved area, the Employer is required to follow the Committee's recommendation and remove the Employees from the involved area immediately."

Even so, Committee members who invoke this power arbitrarily may be removed from the Committee by the employer, and disputes over removal of members are referred to arbitration.

The UMW Constitution mentions local safety committees, and the UMW District 12 constitution provides for annual district-wide safety committee meetings "to resolve safety issues and establish uniform and more efficient methods to enforce ...

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