Appeal from the Circuit Court of Jackson County; the Hon.
William South, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This appeal follows the dismissal of the plaintiffs' amended complaint in three counts for breach of an express and an implied contract of employment.
The plaintiffs, eleven custodians who had been employed by the defendant, Carbondale Community High School District No. 165, filed suit in December of 1984 in a three-count complaint, alleging in count I breach of an express contract and in count II breach of an implied contract of employment. Upon the defendant's motion to dismiss, the trial court dismissed the first count of the complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), giving the plaintiffs 21 days in which to file an amended complaint. In the same order the court dismissed the third count of the complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619).
The plaintiffs filed a three-count amended complaint in which they alleged again in the first count the breach of an express contract and in the second count the breach of an implied contract of employment. In count I, which is designated in parentheses "Express Contract Breach," they stated that the defendant had entered into collective bargaining agreements with them through their union, the Service Employees' International, Local Union No. 316, and that a contract, attached to the complaint as an exhibit, had been entered into by the parties from July 1, 1983, until June 30, 1984. The amended complaint alleged further that on June 30, 1984, a new collective bargaining agreement had not been reached and that the contract of July 1, 1983, to June 30, 1984, had been "extended" because, inter alia, collective bargaining agreements between the parties had traditionally ended on June 30 of each year and had traditionally been extended until a new agreement could be reached; the plaintiffs had worked until August 23, 1984, receiving "the same wages, terms and conditions of employment as under the collective bargaining agreement at issue in this cause"; after June 30, 1984, the defendant and the plaintiffs' local union had negotiated concerning a new contract on five occasions between approximately July 17, 1984, and August 14, 1984; and on about August 14, 1984, "the parties in negotiation agreed that the negotiation of a new contract was at impasse, and * * * the last union proposal had been rejected by the defendant." According to the amended complaint, after June 30, 1984, and during the extension of the collective bargaining agreement the defendant accepted bids for independent custodial services; on about August 23, 1984, the plaintiffs were discharged and their employment was terminated; and on that date a custodial service, Citywide Maintenance of Marion, began performing custodial services for the defendant. The plaintiffs alleged that they
"need not resort to the grievance procedure pursuant to the above said collective bargaining agreement because:
a. The filing of the grievance procedure would have been futile since the appeal under the grievance procedure would have been to the same individuals who made the decision to discharge and terminate the plaintiffs;
b. The defendant district committed an act of anticipatory repudiation of the contract;
c. The defendant district has denied the existence of the contract at issue, and thus the time for filing [sic] grievance procedure would only begin to run after a court has interpreted the contract and made a decision on the dispute between the parties as to the existence and validity of said contract."
The plaintiffs alleged the breach by defendant of article XVI of the agreement, relating to the use of outside contractors, in that the work customarily performed by the employees of the bargaining unit will not be continued to be performed, the defendant had contracted as it had done for the purpose of undermining the local union, and the defendant had so contracted for the purpose of discriminating against members of the collective bargaining unit.
In count II of the amended complaint, which is designated in parentheses "Implied Contract," the plaintiffs alleged "[t]hat the defendant district at various times throughout the employment of the plaintiffs offered the plaintiffs continued employment as custodians for the district, so long as they could satisfactorily perform their work" and "[t]hat the defendant district, by conduct throughout the employment of the plaintiffs as custodians, manifested a pattern of continued employment to the plaintiffs, so long as they satisfactorily performed their work." The plaintiffs alleged further that the defendant's discharge of the plaintiffs on or about August 23, 1984, had not been occasioned by their failure to perform their duties and that by discharging the plaintiffs the defendant had "breached its implied contract to continue employment with the plaintiffs."
In count III of the amended complaint, the plaintiffs alleged that the defendant had formed collective bargaining agreements with them through their union, that after June 30, 1984, and "during the extension of the above said collective bargaining agreement" the defendant had accepted bids for independent custodial services, that the plaintiffs were discharged on or about August 23, 1984, and that on the same day Citywide Maintenance of Marion had begun to perform custodial services for the defendant. The plaintiffs alleged that by so doing the defendant had exceeded the scope of its proper powers and authorities in regard to the hiring and firing of its custodial personnel and had unlawfully delegated its powers and authorities to other individuals with respect to the hiring and firing of its custodial personnel.
The defendant moved to dismiss the amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 100, par. 2-615). With respect to count I the defendant stated that the collective bargaining agreement had expired by its own terms on June 30, 1984, and had not been extended by the parties, that the defendant had had a right to subcontract the custodial and maintenance work after bargaining to impasse over the issue, and that, insofar as the plaintiffs' alleged rights arose from the collective bargaining agreement, their claim was barred by their failure to exhaust their contractual remedies. With regard to count II the defendant stated that under the express terms of the collective bargaining agreement, no implied contract existed between the parties during the term of the agreement, no implied contract arose after June 30, 1984, and no implied contract arose during the term of the collective bargaining agreement as a matter of law.
The trial court subsequently ordered all counts of the amended complaint dismissed. Count I was dismissed for the plaintiffs' failure to exhaust their administrative remedies in a timely manner. The court reasoned in the order as follows:
"Article XVI preserved Plaintiffs' jobs against outside contractors which express term is alleged to be violated in Count I. Article VIII [of the collective bargaining agreement] sets up a grievance procedure and defines a grievance as any alleged violation of any provision of the agreement and provides for time limits and prescribed procedure and for barring of use of the procedure unless a grievance is timely acted upon. There is a four step procedure agreed ...