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05/05/89 the City of De Kalb, v. Ional Association of Fire

May 5, 1989

THE CITY OF DE KALB, PLAINTIFF-APPELLANT

v.

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1236, DEFENDANT-APPELLEE

"ARTICLE X

v.

DISABILITY PAY



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

538 N.E.2d 867, 182 Ill. App. 3d 367, 131 Ill. Dec. 492 1989.IL.679

Appeal from the Circuit Court of De Kalb County; the Hon. Rex F. Meilinger, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. UNVERZAGT, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, the City of De Kalb (De Kalb), a home rule unit, appeals from an order dismissing its amended complaint in which De Kalb sought to vacate and set aside an arbitrator's award made to certain city firemen who were members of defendant, the International Association of Fire Fighters, Local 1236 (the Union). De Kalb contends that its complaint was erroneously dismissed because the arbitrator's award violated public policy as set forth in the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 1-101 et seq.) and should be vacated., Plaintiff and defendant entered into a collective bargaining agreement in July 1980, which included the following provisions:

Section A. A member of the Fire Department who is incapacitated from injury in the course of his employment with the City shall be entitled to a maximum of six (6) calendar months leave on account of the disability with full pay if granted by the Police and Fire Commission according to Chapter 24, Section 10 -- 2.1 -- 23 of the Illinois Revised Statutes. This six (6) month period may be extended by the City Manager with the approval of the City Council.

Section B. A member who is receiving benefits under Workmen's Compensation Act, Workmen's Occupational Disease Act, or Illinois Pension Code will be paid the difference between base pay and the aforementioned benefits for the applicable period of his disability."

Subsequent collective bargaining agreements entered between these parties contained the same provision. In 1982, fire fighter Charles Siebrasse was injured and commenced receiving 65% of his regular base pay as a fire fighter's disability pension awarded by the Board of Police and Fire Commission of the City of De Kalb pursuant to section 4-110 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 4-110). An additional 35% of his base salary was also paid by De Kalb pursuant to the disability provision of article XV of the collective bargaining agreement. In February 1986, De Kalb discontinued paying the 35% differential pay provided for in the agreement after being advised by a representative of the State of Illinois Department of Insurance that the additional disability payments were contrary to the Illinois Pension Code. Fire fighter John Hiland became disabled on June 27, 1985, as a result of a heart attack and was awarded a disability pension. Hiland was denied differential pay under the agreement because he was receiving 65% of his pay from his disability pension pursuant to section 4-110.1 of the Pension Code.

In January 1987, De Kalb and the Union entered into a new collective bargaining agreement in which the disability period contained in article XV, section A, of the disability pay provisions was increased from 6 to

The Union filed a grievance on behalf of these firemen, pursuant to the terms of the collective bargaining agreement, after De Kalb declined to pay them the difference between their regular base pay and their disability pensions. De Kalb denied the grievance and it was referred to an arbitrator. After a hearing held in May 1987, the arbitrator sustained the grievance and ordered the City to pay Siebrasse and Hiland the differential pay as provided for in the collective bargaining agreement at the time of their injuries. The current agreement also provided that the decisions of an arbitrator on matters submitted to arbitration were final and binding.

The City of De Kalb then filed a complaint in the circuit court to vacate the arbitration award alleging that "[this] action is brought in the nature of a request for a review of a certain arbitration award . . . pursuant to the provisions of Section 8 of the Illinois Public Labor Relations Act, Ill. Rev. Stats. 1985, Ch. 48, par. 1608; and Section 112 of the Illinois Uniform Arbitration Act, Ill. Rev. Stats. 1985, Ch. 10, Par. 112." (Emphasis in original.) An amendment to the complaint further alleged that the arbitrator's award was in direct contravention of Illinois public policy contained in section 4-142 of the Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 4-142), which prohibited a home rule municipality from providing an annuity benefit to a fire fighter other than as provided in the Illinois Pension Code. The Union filed a combined motion to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-619) in which it alleged that the trial court did not have subject-matter jurisdiction to review the arbitrator's award; that De Kalb's complaint did not set forth any basis which would render the arbitrator's decision unlawful; that De Kalb waived any objection to the arbitrator's authority to decide the legality of the disputed compensation when it agreed to submit that issue to the arbitrator for a final and binding determination; and that De Kalb's complaint failed to set forth facts to establish that the arbitrator was without or exceeded his powers, or that the award was the result of partiality, or was procured by fraud, collusion or some other unlawful means, as is required by section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 112).

The trial court granted the Union's motion to dismiss, stating only that doing so "will permit the Appellate Court to expeditiously consider the 'public policy' argument of Plaintiff." The Judge did not specify on what legal or factual basis he granted the Union's motion to dismiss, whether the dismissal was pursuant to section 2 -- 615 or section 2 -- 619 of the Code of Civil Procedure or give any indication he had made any effort to consider the merits of the issues presented to the circuit court for its determination.

De Kalb appeals, and we note it has not complied with Supreme Court Rule 341(e)(4)(ii), which requires that an appellant's brief contain a statement of jurisdiction. (122 Ill. 2d R. 341(e)(4)(ii).) Failure to do so in ...


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