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09/25/96 DAVID H. MARTIN v. CITY O'FALLON

September 25, 1996

DAVID H. MARTIN, PLAINTIFF-APPELLANT,
v.
THE CITY OF O'FALLON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County. No. 93-L-962. Honorable Milton S. Wharton, Judge, presiding.

Presiding Justice Hopkins delivered the opinion of the court: Welch, J., and Rarick, J., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

Plaintiff, David H. Martin, filed a five-count complaint against the City of O'Fallon (City) and four City employees. Plaintiff settled counts two through five, which alleged intentional infliction of emotional harm against each of the four City employees. On August 29, 1995, the St. Clair County circuit court granted the City's motion to dismiss count one, which sought an order compelling the City to submit to arbitration. Plaintiff appeals from the order dismissing count one.

I. ISSUE

We consider what appears to be a question of first impression in Illinois: whether the union, of which plaintiff was a member, may validly assign to plaintiff its right to demand arbitration under the collective bargaining agreement between the union and the City and, thus, compel the City to arbitrate directly with the employee rather than with the union or its designated representative. For reasons that we will fully explain, we affirm the trial court's dismissal of count one of plaintiff's complaint.

II. FACTS

Plaintiff alleged in count one of the dismissed complaint that in 1982 he was employed by the City as an emergency medical technician (EMT), that he was later promoted to the position of paramedic, and that the City terminated his employment on December 8, 1992. Additionally, plaintiff alleged that during the entire period of his employment with the City, he was a member of the Teamsters, Automotive, Petroleum and Allied Trades Local Union No. 50 (the Union) and that "there was in full force and effect" from May 1, 1991, to April 30, 1994, an agreement between the City and the Union (the collective bargaining agreement). Plaintiff attached to the complaint a copy of the collective bargaining agreement.

The collective bargaining agreement states that its purpose is to establish "rates of pay, wages, hours of work, and conditions of employment to be observed by the parties hereto." The parties are listed as the City and the Union "and/or its successors." Under the collective bargaining agreement, the City agreed to recognize "the Union, its agents, representatives, or successors as the exclusive bargaining agent" for all City employees, including all EMTs and paramedics.

Article four of the collective bargaining agreement outlined the grievance procedure as follows:

"Section 2. It is mutually agreed that any difference arising between the City and the Union or any employee of the City as to the meaning or application of the provisions of this Agreement such difference [sic] shall be settled in the following manner:

***

Step 3. If no agreement can be reached pursuant to the procedure specified in Steps 1 and 2 [oral and written grievances by employee and review by the Union's Business Representative and the City's Director of Public Safety], the parties, upon written request of either party, shall submit the grievance to arbitration."

The remainder of the steps in the grievance procedure deal with how the three arbitrators ...


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