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02/03/87 Howard Zelenka Et Al., v. the City of Chicago Et Al.

February 3, 1987

HOWARD ZELENKA ET AL., PLAINTIFFS-APPELLANTS

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

504 N.E.2d 843, 152 Ill. App. 3d 706, 105 Ill. Dec. 558 1987.IL.108

Appeal from the Circuit Court of Cook County; the Hon. Benjamin S. Mackoff, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Plaintiffs appeal from the circuit court's rulings dismissing their complaint and failing to compel arbitration. On appeal, plaintiffs contend that the trial court erred: (1) when it held that the statute of limitations for an action against defendant for breach of its duty of fair representation should be 90 days as set forth in the Illinois Arbitration Act; (2) in dismissing their claims against defendant because plaintiffs alleged sufficient facts to establish that defendant breached its duty of fair representation; (3) in ruling that plaintiffs were required to exhaust their grievance remedies against defendant before bringing a cause of action against the city of Chicago for breach of contract; and (4) in denying plaintiffs' motion to compel arbitration because plaintiffs lacked standing under the collective-bargaining agreement.

Plaintiffs were firefighters employed by defendant city of Chicago (city) and members in good standing of defendant Chicago Firefighters Union, Local 2, International Association of Firefighters, AFL-CIO (union). Each of the 35 plaintiffs retired on disability pensions at various times between January 1, 1981, and October 1, 1983, after having been on sick/injury or occupational disability leave for one year.

All of the plaintiffs were subject to a collective-bargaining agreement (agreement) between the union and the city entered into on March 1, 1982. Section 7.1 of the agreement provides that all employees are entitled to an annual paid vacation. Section 7.3 of the agreement provides that an employee who becomes injured or disabled shall receive his "usual salary" for a 12-month period. Plaintiffs claim that the provision guaranteeing "usual salary" required the payment of vacation benefits accrued during the 12-month sick leave.

The agreement provides for a three-step grievance process. Step one provides for the employee, with or without a union representative, or the union alone, to take a grievance up with the city. Step two of the procedure allows the union, with or without the employee, to appeal an unresolved grievance to the fire commissioner. If the grievance remains unresolved after step two, "either party may, by written notice to the other party, invoke arbitration." The agreement provides that an employee shall take up a grievance with the employer within 10 days of its occurrence or the date on which the employee knew or should have known of its occurrence. The agreement further provides that any grievance not filed within the established time limits shall be waived.

Two of the plaintiffs, Harold Strus and Edward Kramer, filed grievances against the city for failure to compensate plaintiffs for lost vacation pay. Kramer retired on or about March 28, 1981, and filed his grievance on June 15, 1983. Strus retired on or about February 2, 1982, and filed his grievance on May 11, 1983. Both of these grievances were rejected for being untimely. Additionally, on June 15, 1983, defendant union refused to arbitrate these grievances.

Fire department employee Norman McCrea filed grievances protesting an alleged deprivation of vacation benefits during his one-year sick leave. He retired on or about December 15, 1982, and filed his grievance on or about January 4, 1983. On December 15, 1983, the city and union entered into a settlement agreement on McCrea's grievance. The settlement agreement provided that all employees on a 12-month sick/injury leave as of December 15, 1983, would be compensated for their accrued vacation time. Because plaintiffs were on sick/injury leave prior to December 15, 1983, they were not compensated by the McCrea agreement.

On April 9, 1984, approximately four months after the McCrea settlement, plaintiffs filed this action against the city claiming breach of contract and against the union claiming breach of the duty of representation. Both the city and union filed motions to dismiss. On February 28, 1985, the circuit court granted the city's motion to dismiss on the ground that plaintiffs had failed to allege exhaustion of their remedies under the agreement. The circuit court also granted the union's motion to dismiss because the claim against the union alleging breach of duty of fair representation was not timely. On April 19, 1985, plaintiffs also filed a motion to compel arbitration. On August 9, 1985, the circuit court denied the plaintiff's motion to compel arbitration. On November 8, 1985, the circuit court dismissed plaintiffs' third amended complaint with prejudice. Plaintiffs now appeal from the dismissal of their complaints and the denial of their motion to compel arbitration.

Plaintiffs first contend that the trial court erred when it held that the statute of limitations for an action against defendant union for breach of its duty of fair representation should be 90 days as set forth in the Illinois Arbitration Act. We find that the trial court was incorrect in holding that a 90-day statute-of-limitations period was applicable. The Supreme Court in DelCostello v. International Brotherhood of Teamsters (1983), 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281, held that the six-month period of limitations provided in section 10(b) of the National Labor Relation Act (29 U.S.C. par. 160(b) (1982)), should govern in hybrid section 301/fair representation suits both as to the claim against the employer and the claim against the union. Marston v. La Clede Cab Co. (E.D. Mo. 1983), 571 F. Supp. 1243, 1245.

DelCostello is dispositive of this issue because plaintiffs have filed a hybrid section 301/fair representation suit alleging that the city breached their collective-bargaining agreement and that the union breached its duty of fair representation. ...


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