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Cosentino v. Price

OPINION FILED AUGUST 27, 1985.

JOHN N. COSENTINO, PLAINTIFF-APPELLANT,

v.

EDWARD A. PRICE ET AL., DEFENDANTS-APPELLEES.



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

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 30, 1985.

Plaintiff John N. Cosentino filed a complaint against defendants, Edward A. Price and Photoplate, Inc., alleging retaliatory discharge and breach of a collective bargaining agreement. After a series of amendments and hearings, on motion of defendants, the trial court dismissed both the retaliatory discharge and breach of contract counts. At a hearing on plaintiff's motion to vacate the dismissal, the trial court gave the plaintiff a final opportunity to present a proposed valid complaint. After considering the motion and the proffered complaint, the trial court denied leave to file the complaint and denied the motion to vacate.

The issues presented on appeal are: (1) whether the count alleging a retaliatory discharge was properly stricken and the action dismissed; (2) whether plaintiff's amended complaint alleging breach of contract was properly stricken and the action dismissed; and (3) whether plaintiff's motion to vacate the dismissal was properly denied.

Plaintiff was employed as a truck driver by defendant, Photoplate, Inc. (hereinafter defendant). Defendant Price is the president of Photoplate, Inc. Plaintiff was a member of the International Brotherhood of Teamsters, Local 705 (hereinafter the union). Defendant and the union were parties to a collective bargaining agreement (hereinafter the agreement) on behalf of the union's members who were employed by defendant. The agreement established certain procedures for the disposition of employee grievances.

On or about July 1981, plaintiff filed a grievance against defendant alleging that he was threatened with a layoff if he continued to demand certain cost of living increases which he claimed were due him under the agreement. He was laid off on May 18, 1981, and requested compensation for the cost of living increases and time lost because of this alleged improper layoff. The grievance proceeding was completed on July 7, 1981, with the following result:

"After reviewing the testimony, and in agreement with the driver, the decision is that the grievant is to be recalled from lay off as of Monday, July 13, 1981, with compensation for two (2) weeks pay, and the company is to make his vacation pay whole.

The grievant is satisfied with the union representation, and the outcome of his grievance meeting."

After his recall, plaintiff worked one week and was again laid off. He filed another grievance on October 1, 1981, alleging that other persons were doing the work that had previously been his. On October 13, 1981, the following decision was rendered:

"After hearing the case, there was no documented evidence presented that the company is using other people to do the grievants work, therefore, the grievance is denied. The grievant is satisfied with the union representation."

On October 14, 1982, plaintiff instituted this action in the circuit court of Cook County. The complaint and several amendments were stricken or dismissed. The amendments will be discussed only as they are necessary to the proper disposition of the issues on appeal.

Plaintiff's amended complaint alleged a retaliatory discharge and breach of the collective bargaining agreement. The retaliatory discharge count alleged that plaintiff asserted certain claims pursuant to the collective bargaining agreement; and that defendant threatened to discharge him if he persisted, and did thereafter discharge him.

After a hearing, the court dismissed the retaliatory discharge count with prejudice. The breach of contract count was stricken for failure to allege exhaustion of the contractual remedies prior to filing suit. Plaintiff was given leave to file an amended breach of contract pleading.

Plaintiff's next amended complaint included an allegation that plaintiff exhausted his contractual remedies. In response to defendant's bill of particulars, plaintiff stated that the contractual remedies he pursued ...


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