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February 18, 1994


Appeal from the Circuit Court of the 10th Judicial Circuit Tazewell County, Illinois. No. 92-L-102. Honorable Bruce W. Black, Judge Presiding.

Released for Publication March 24, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

The plaintiffs-appellants, Wilburn Young, Morris Delbridge and Sankey Stanton, (hereinafter the plaintiffs) filed a complaint in the circuit court of Tazewell County asserting a class action against the defendant-appellee, Caterpillar, Inc. The complaint alleged the defendant breached individual contracts of the employment with the plaintiffs and all others members of the class they represented. The circuit court dismissed the action on the defendant's motion for judgment on the pleadings/summary judgment, treating the motion as a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). We affirm, finding the plaintiffs' state-law causes of action are pre-empted by the National Labor Relations Act (the Act) (29 U.S.C. § 151 et seq.).

Under section 2-619(a)(1), a cause of action can be dismissed when the court finds it lacks subject matter jurisdiction. (735 ILCS 5/2-619(a)(1) (West 1992).) In assessing a section 2-619 motion to dismiss, the circuit court must take all facts properly pleaded as true; including facts within an affidavit if those facts are not contradicted by counteraffidavit. ( Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372; Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 396 N.E.2d 34.) If the grounds for dismissal do not appear on the face of the pleading attacked, the motion to dismiss is to be supported by affidavit. (735 ILCS 5/2-619(a) (West 1992).) On review, this court is concerned only with questions of law presented by the pleadings. People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 575 N.E.2d 1378.

In the instant case, the parties (and in particular the plaintiffs) have attempted to present and discuss only those facts which support their contentions. However, from the pleadings and affidavits the basic facts emerge.

The record shows the plaintiffs are members of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the Union). The Union is the exclusive collective bargaining representative of the plaintiffs. At relevant times prior to April 15, 1992, the plaintiffs were employees of the defendant. The defendant is an employer in industry affecting interstate commerce within the meaning of the National Labor Relations Act.

During the late summer of 1991, the Union and the defendant entered into collective bargaining over the terms of a new "Labor Contract." The prior collective bargaining agreement was set to expire on September 30, 1991. Following an agreed extension, a dispute arose between the parties. On November 4, 1991, the Union began a strike at the defendant's facilities in Decatur and East Peoria. Though the talks continued into February 1992, the strike spread to other Caterpillar plants during the winter.

On March 5, 1992, Wayne Zimmerman, defendant's Vice President for Human Resources, notified the Union in writing that because the Union had rejected the defendant's third proposal to settle the dispute, the defendant now considered the talks at an impasse. On March 31, 1992, the defendant notified the Union that in light of the ongoing impasse, the defendant had decided to unilaterally implement "modified terms and conditions of employment" in line with the defendant's last contract offer. The defendant also informed the Union that it was sending letters to all employees inviting their "continued or return to work." The defendant stated that it continued to recognize the Union as the collective bargaining representative and remained willing to meet with the Union at any time.

Thereafter, a letter dated March 31, 1992, was sent to each employee. Citing the Union's rejection of the defendant's final contract offer, the defendant stated it was "inviting all hourly employees to return to work beginning on Monday, April 6, 1992." The letter told the employees that if they did not return to work on the 6th, the defendant would begin filling open positions by recalling laid-off employees and by hiring permanent replacements. The letter further informed the employees that the defendant now found it required "considerably fewer employees" than prior to the strike.

On April 1, 1992 and again on April 2, 1992, the Union filed unfair labor practices claims against the defendant with the National Labor Relations Board (the Board). The Union contended the defendant's action interfered with the employees' rights under section 7 of the Act (29 U.S.C. § 157) in violation of section 8 of the Act (29 U.S.C. § 158).

According to the affidavit of Jerry Brust, the Director of Corporate Labor Relations for Caterpillar, the Union instructed its employees not to return to work. The plaintiffs in this case did not return to work on the 6th, although approximately 1000 other employees did. On April 14, 1992, the Union made an unconditional offer to return to work. The defendant accepted the offer. The only apparent factualdisagreement between the parties concerns the reinstatement process of returning strikers. The defendant contends it told the Union and its members they could not all return at the same time, but they would be reinstated over a period of time. The plaintiffs deny the defendant said anything about a delay in reinstatement.

The record contains a letter from the defendant, dated April 14, 1992, informing employees who were on strike that they should return to work only after receiving notice from their "facility management." The Union issued a letter the same day telling all members to return to work on April 15, 1992. The letter further told members that they should report to their committeeman if they were denied the opportunity to return to work. On April 16, 1992, the defendant issued a notice stating that it would begin recalling striking employees on April 20, 1992. The letter stated ...

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