Appeal from the Circuit Court of Cook County; the Hon. Arthur
Dunne, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Plaintiff, Steven Swieton, initially brought this action against the city of Chicago, the Chicago fire department, William Blair, the fire commissioner, and James R. Fahey, the director of personnel of the fire department (hereinafter sometimes referred to collectively as City), alleging that he had been wrongfully discharged from his employment as a fire fighter with the department and seeking reinstatement and back pay. Subsequently, the trial court determined that the Chicago Fire Fighters Union, Local No. 2, International Association of Fire Fighters, AFL-CIO, the collective bargaining agent representing fire fighters employed by the department, was a necessary party and ordered that the union be joined as a defendant. Pursuant to that order, Swieton filed his second amended complaint, adding the union as a defendant and alleging, in part, that the union breached its duty under the collective bargaining agreement between the union and the city, to provide him with fair representation throughout the grievance procedures. Thereafter, the trial court granted motions to dismiss filed by both the union and the City, ruling that Swieton failed to exhaust the internal union appeals procedures under the constitution of the International Association of Fire Fighters and that the allegations of the second amended complaint, that the union breached its duty of fair representation, were couched in conclusory terms, and were not sufficient to state a cause of action against the union. Swieton now appeals from the order dismissing the second amended complaint as to the City and the union.
The second amended complaint alleges that Swieton was employed as a fire fighter by the Chicago fire department; that during the fire fighters' strike of 1980, a fire occurred on February 14, 1980, at 4144 North Kenmore in Chicago; that this fire was investigated by the internal affairs division of the department; that on March 5, 1980, and on at least one occasion thereafter, the supervisor of the internal affairs division of the department, who held the rank of captain, sought the cooperation of Swieton, then a member of the department, in the investigation of the fire; that on March 5, 1980, and on at least one occasion thereafter, this captain, who was responsible for conducting the investigation, informed Swieton's attorney that Swieton's position as a fire fighter in the department would be secure and Swieton would not be disciplined or discharged if he cooperated with the investigation and provided certain information concerning his knowledge as to how the fire started; that this captain assured Swieton's attorney that Swieton would remain employed as a fire fighter in the department if he cooperated in the investigation and prosecution of the individuals responsible for starting the fire; that Swieton, through his attorney, relied on these representations and promises; that Swieton cooperated fully in the investigation of the parties responsible for setting the fire; *fn1 that Swieton was never charged with a criminal offense in connection with the fire; that contrary to the aforementioned representations, defendant Fahey notified Swieton that he was discharged from his employment as a fire fighter in the department; that Swieton, as a member of the union, sought reinstatement to his position through the three-step grievance procedure of the collective bargaining agreement between the city of Chicago and the union; that Swieton advised the union of the promises made to him; that the union employed the first two steps of this grievance procedure in an effort to have Swieton reinstated to his position, but the City and department refused to reinstate Swieton; that only the union or the City had the power to invoke arbitration under the third step of the collective bargaining agreement. With respect to arbitration, the second amended complaint alleges:
"18. The Union, without any explanation to plaintiff for its decision, has wrongfully refused to invoke arbitration as set forth in Step III of said agreement * * * even though plaintiff has made oral and written demands upon the Union * * * that it invoke arbitration on behalf of plaintiff so that he is afforded a hearing by the American Arbitration Association concerning the propriety of defendant's decision to discharge plaintiff.
19. Plaintiff has made every effort to exhaust all grievance and arbitration procedures as set forth in said collective bargaining agreement, but the Union has wrongfully refused to process plaintiff's grievance under Step III of the collective bargaining agreement. Furthermore, the Union has breached its duty to represent plaintiff fairly in the resolution of plaintiff's grievance with the other defendants."
In the prayer for relief, Swieton asked for both reinstatement to his position as a fire fighter and compensation for lost wages from the time of his discharge from employment.
The trial court dismissed the second amended complaint for the reasons stated at the outset of this opinion. We first consider the trial court's ruling that the allegations regarding the union's breach of its duty to provide representation were couched in conclusory terms and were not sufficient to state a cause of action against the union. We disagree.
Section 13.3 of collective bargaining agreement between the union and the city describes the union's duty of fair representation. It provides:
"The Union recognizes its responsibility as bargaining agent and agrees to fairly represent all employees in the bargaining unit without discrimination, interference, restraint or coercion. The Union's duty of fair representation shall be carried out in conformity with the standard enunciated by the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171."
In Vaca v. Sipes (1967), 386 U.S. 171, 17 L.Ed.2d 842, 87 S.Ct. 903, the Supreme Court stated:
"A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. * * *
Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement." (Vaca v. Sipes (1967), 386 U.S. 171, 190-91, 17 L.Ed.2d 842, 857-58, 87 S.Ct. 903, 916-17.)
(See also Archie v. Chicago Truck Drivers, Helpers & Warehouse Workers Union (7th Cir. 1978), 585 F.2d 210, 219-20.) Moreover, "[m]ere negligence cannot rise to the level of misconduct necessary to support an action for breach of the Union's duty of fair representation." Hoffman v. Lonza, Inc. (7th Cir. 1981), 658 F.2d 519, 523.) According to the Seventh Circuit's opinion in Hoffman, conduct which is merely negligent is not arbitrary, discriminatory or in bad faith. 658 F.2d 519, 523.
• 1 In our opinion, Swieton's second amended complaint alleges more than mere negligence, and pleads sufficient facts which, if proved, would support an inference of discrimination and bad faith in the union's handling of this grievance. The second amended complaint alleges that the union was made aware during the initial stages of the grievance procedure that Swieton was promised that he would not be fired from his job if he cooperated in the arson investigation and that Swieton cooperated fully in the investigation. It alleges that the union, at plaintiff's insistence, employed Steps I and II of the collective bargaining agreement grievance procedure in an effort to have plaintiff reinstated to his position, but that the City has failed to reinstate him, and that Swieton made repeated demands upon the union to invoke Step III, so that he would be afforded an arbitration hearing by the American Arbitration Association on the propriety of defendant's decision to discharge plaintiff but the union did not do so; and the union never gave Swieton any explanation for its decision not to invoke arbitration. Moreover, exhibits attached to the second amended complaint would support a conclusion that Swieton's grievance was processed in a perfunctory fashion. They tend to establish that, although under the collective bargaining agreement the union had 15 days to invoke arbitration after Step II of the grievance procedure was denied, *fn2 it was not until after the 15-day period had expired that the union grievance committee met to consider arbitration of the grievance, and it was not until four days after this meeting that Swieton received a letter from the union indicating that the union would not seek arbitration.
In short, we are of the opinion that under the allegations of the second amended complaint, facts could be proved which would establish that the union breached its duty of fair representation. Accordingly, we conclude that the trial court erred in ruling that the allegations of the second amended complaint concerning the union's ...