Mahoney v. City of Chicago

Fourth Division
October 30, 1997

No. 1-96-3113

WILLIAM MAHONEY, JOHN J. O'BRIEN, THOMAS ) APPEAL FROM THE
DEACY, TIMOTHY HAYES, CARL R. HOPKINS, ) CIRCUIT COURT OF
DOUGLAS O. CARBOL, RICHARD W. BUESCHEL, ) COOK COUNTY.
GERALD HAYES, JAMES M. WULFF, NORBERT )
PERKINS, JOHN J. KELLY, LAWRENCE R. WEISS, )
WILLIAM W. SWEENEY, STANLEY J. PRYSOK, )
MICHAEL WALSH, HILERY OSHAUGHNESSY, RICHARD )
E. OLSON, JAMES M. NOLAN, RUSSELL D. COLLINS,)
DONALD S. OLSEN, DENNIS W. NOVOTNY, THOMAS P.)
BROWN, DANIEL E. REARDON, DANIEL DAHL, JOHN )
BJORVIK, DONALD JURCAK and MICHAEL J. WALSH, )
)
Plaintiff-Appellants, )
)
v. )
)
CITY OF CHICAGO, RAYMOND OROZCO, Officially, )
GLENN CARR, Officially, ) HONORABLE
) SUSAN ZWICK,
Defendants-Appellees. ) JUDGE PRESIDING.

PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Can Chicago firefighters who are members of the Fire
Fighter's Union bring suit, as individuals, against the City for
claimed irregularities in the City's method of promoting? Our
answer is no, not under the circumstances of this case.
BACKROUND
In compliance with affirmative action provisions within the
collective bargaining agreement between the Chicago Fire
Fighter's Union, Local No. 2 (the Union) and the City of Chicago
(City), minority firefighters were promoted to the position of
lieutenant over non-minority firefighters who scored higher on
the 1979 promotional exam. In 1987, a new promotional exam was
given and a new eligibility list generated. The 1979 list was
retired.
In March 1988, William Mahoney, whose name was next on the
1979 eligibility list, filed a grievance through the Union
according to the procedures outlined in the collective bargaining
agreement with the City. The Union then joined Mahoney's
grievance with a class grievance against the City on behalf of
the remaining non-minority firefighters on the 1979 eligibility
list. The Union requested the City fill vacancies for the
position of lieutenant using the 1979 list until it was
exhausted, before using the 1987 eligibility list. The City
denied the grievance. Arbitration was requested, but never
pursued by the Union. The grievances never were resolved.
In December 1991, 32 non-minority firefighters, including
Mahoney, filed a four-count complaint against the City, alleging
the promotion of minority firefighters in compliance with the
Albrecht Consent Decree[fn1] violated their equal protection and
due process rights, and breached City personnel laws and the
collective bargaining agreement. In May 1993, the complaint was
dismissed in part and leave was granted plaintiffs to file an
amended complaint.
In June 1993, 27 non-minority Chicago firefighters,
including Mahoney, who took and passed the 1979 lieutenant's
promotional exam,4 filed an amended complaint against the City of
Chicago in the circuit court of Cook County. They alleged the
City's failure to fill lieutenant position vacancies by selecting
candidates in strict rank order from the eligibility list
generated from the 1979 lieutenant's promotional exam: (1)
violated their constitutional right to equal protection, (2)
resulted in a taking of a property interest without due process,
(3) violated City personnel rules, and (4) breached an implied
contract based on the City's personnel rules. Plaintiffs also
contended the City promoted unqualified minority candidates who
failed the promotional test by more than one standard deviation
of the mean score for minority candidates (as set forth in the
Albrecht Consent Decree), and that the 1979 list should not have
been retired until the non-minority candidates with a passing
grade who remained on the 1979 list received promotions.
Plaintiffs sought compensatory damages of $125,000 for each
plaintiff, an injunction requiring the City to promote each
plaintiff to the rank of lieutenant, retroactive pay and
benefits, and attorney fees and costs.
The equal protection claim was dismissed and that ruling is
not being challenged. As to the other three counts, the trial
court granted summary judgment in favor of the City. The court
found all plaintiffs, other than Mahoney, had failed to exhaust
their remedies under the collective bargaining agreement because
they had not filed an individual grievance with the Union. As to
Mahoney, the court found the Union's failure to proceed to
arbitration did not preclude a finding that Mahoney had exhausted
his remedies under the collective bargaining agreement.
Nonetheless, the court found Mahoney's claim was
collaterally estopped by the arbitration decision issued in the
so-called "Benn case". See Chicago Fire Fighters Union, Local
No. 2 v. City of Chicago, Arbitration Nos. 51-390-0531-86-B and
51-390-0161-87-B, issued May 23, 1988, by Arbitrator Edwin H.
Benn. In that case the arbitrator determined it was not a
violation of the collective bargaining agreement for the City to
pass over non-minority candidates who scored higher grades on the
1979 captain's and engineer's promotional exams to promote
minority candidates who scored below the "passing grade" of 70.
The arbitrator also ruled that the City could retire the 1979
eligibility list for the position of engineer and begin use of
the 1986 promotional eligibility list without first promoting all
eligible candidates passed over on the 1979 eligibility list.
Plaintiffs appeal the summary judgment order entered against
them.
DECISION
All of the plaintiffs are members of the Chicago Fire
Fighter's Union, Local No. 2, a labor organization designated as
the plaintiff's exclusive representative for the purposes of
collective bargaining. 5 ILCS 315/6 (West 1996). The Union has
the statutory authority and duty to fairly represent all of its
members in the negotiation of the collective bargaining agreement
with the City and to enforce the terms of the collective
bargaining agreement. 5 ILCS 315/7 (West 1996).
The Union represents the interests of its members with
respect to rates of pay, wages, and other conditions of
employment. 5 ILCS 315/6 (West 1996). The criteria used for
determining promotions is a mandatory subject of bargaining.
Village of Franklin Park v. ISLRB, 265 Ill. App. 3d 997, 638 N.E.2d 1144 (1994).
Despite the fact plaintiffs identify their claims as
constitutional violations or a breach of personnel rules, when
they challenge the City's method of filling promotional vacancies
they are questioning the City's compliance with the collective
bargaining agreement. For this reason, plaintiffs are required
to at least attempt to exhaust their remedies under the
collective bargaining agreement before they are able to bring
suit against the City in the circuit court. Quist v. Board of
Trustees, 258 Ill. App. 3d 814, 818, 629 N.E.2d 807 (1994);
Carnock v. City of Decatur, 253 Ill. App. 3d 892, 625 N.E.2d 1165
(1993). Plaintiffs must allege on the face of their complaint
that the grievance procedures were followed and exhausted.
Quist, 258 Ill. App. 3d at 818.
We must determine whether the plaintiffs have exhausted
their remedies under the collective bargaining agreement. The
trial court held that Mahoney had exhausted his remedies, but the
other plaintiffs had not. The court treated Mahoney differently
because he had filed an individual grievance with the Union and
the others had not.
We do not believe that this distinction is of any
significance. The Union filed a class grievance on behalf of all
remaining non-minority candidates on the 1979 lieutenants'
eligibility list, but never pursued arbitration. All of the
plaintiffs were covered by this class grievance filed in their
names. There is no valid reason to treat any of the plaintiffs
differently when we determine the issue of standing.
The controlling question is whether Mahoney and the other
plaintiffs establish standing to sue the City even though they do
not challenge their union's failure to pursue final and binding
arbitration of the promotion dispute.
In Carnock, 253 Ill. App. 3d at 895, the court quoted
Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 13 L. Ed. 2d 580, 583, 85 S. Ct. 614, 616 (1965), with favor, noting that,
in general, individual employees wishing to assert contract
grievances must attempt to use the grievance procedure, but "[i]f
the union refuses to press or only perfunctorily presses the
individual's claim, differences may arise as to the forms of
redress then available."
In Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), a union-represented employee brought suit against his
employer in State court for wrongful discharge, claiming a breach
of the collective bargaining agreement, after the union refused
to take the grievance to arbitration. The court said:
"However, if the wrongfully discharged employee himself
resorts to the courts before the grievance procedures
have been fully exhausted, the employer may well defend
on the ground that the exclusive remedies provided by
such a contract have not been exhausted. Since the
employee's claim is based upon breach of the collective
bargaining agreement, he is bound by terms of that
agreement which govern the manner in which contractual
rights may be enforced. For this reason, it is settled
that the employee must at least attempt to exhaust
exclusive grievance and arbitration procedures
established by the bargaining agreement. [Citation.]
However, because contractual remedies have been devised
and are often controlled by the union and the employer,
they may well prove unsatisfactory or unworkable for
the individual grievant. The problem then is to
determine under what circumstances the individual
employee may obtain judicial review of his breach-of-
contract claim despite his failure to secure relief
through the contractual remedial procedures." 386 U.S. at 184-85, 17 L. Ed. 2d at 854-55, 87 S. Ct. at 914.
The Vaca court went on to say it would "be a great
injustice" to leave an employee remediless when the union, which
has the sole power to invoke the higher stages of the grievance
procedure, prevents the employee from exhausting his contractual
remedies by wrongfully refusing to process the grievance. 386 U.S. at 185-86, 17 L. Ed. 2d at 855, 875 S. Ct. at 914. In Vaca
the court found that the employee could seek judicial redress of
his claim, "provided the employee can prove that the union as
bargaining agent breached its duty of fair representation in its
handling of the employee's grievance." 386 U.S. at 186, 17 L. Ed. 2d at 855, 87 S. Ct. at 914. To hold otherwise, said the
court, would give the employee the ability to compel arbitration
regardless of the merit of the claim. This would cause the
settlement machinery provided by the collective bargaining
agreement to be substantially undermined, destroy the employer's
confidence in the union's authority, and return the individual
grievant to the vagaries of independent and unsystematic
negotiation. Vaca, 386 U.S. at 191, 17 L. Ed. 2d at 858, 87 S. Ct. at 917.
The Illinois Public Labor Relations Act states in section
6(d):
"Labor organizations recognized by a public employer as
the exclusive representative or so designated in
accordance with the provisions of this Act are
responsible for representing the interests of all
public employees in the unit. Nothing herein shall be
construed to limit an exclusive representative's right
to exercise its discretion to refuse to process
grievances of employees that are unmeritorious."
(Emphasis added.) 5 ILCS 315/6(d) (West 1996).
We believe the reasoning in Vaca must be applied here. That
is, plaintiffs need not exhaust their remedies if they claim and
prove that the union has breached its duty of fair
representation.
These plaintiffs, however, never have alleged or attempted
to prove that the Union was derelict in its duty of fair
representation by failing to pursue arbitration of their
grievances. For this reason, we believe that plaintiffs do not
have standing to bring suit and dismissal was proper.
The same determination -- that an individual union member
lacks the necessary standing to bring suit against his employer
unless the union member alleges and proves that the "Union's
conduct in processing the grievance was arbitrary,
discriminatory, or in bad faith" -- recently was reached by this
court in Stahulak v. City of Chicago, No. 1-95-3611, filed August
25, 1997. Stahulak holds that under both the ILPRA and the
collective bargaining agreement the Union has the sole power to
invoke the higher stages of the grievance process, including
arbitration. Any process that ignores the union's authority in
these matters undermines the entire collective bargaining system.
The contract negotiated between the Union and the City rests at
the heart of this controversy. The contract defines the fire
fighters' rights.
Strictly speaking, the plaintiffs are correct when they say
they are not attacking their Union's resolution of a grievance in
this lawsuit. But they end up in the same place. They are
seeking judicial review of a purported breach of the collective
bargaining agreement. The Union did not seek arbitration. The
failure to allege the Union breached its duty of fair
representation is no minor defect or trifling oversight that can
easily be corrected. It is a matter of substance, grounded
deeply in principles of collective bargaining.
We decline the plaintiffs' offer to return to the trial
court with an amended complaint that would attempt to satisfy
their current lack of standing. There is too much history here
for the plaintiffs to now say, for the first time, their Union's
behavior has been arbitrary, discriminatory, and in bad faith.
In fact, the Union has arbitrated almost identical issues
for other officers of the Chicago Fire Department. In May, 1988,
the Union and the City were parties to an arbitration decision
issued by Edwin H. Benn (the Benn decision). In that case,
concerning captains and engineers, Arbitrator Benn followed a
prior decision by an arbitrator named Goldstein.
Benn held: (1) the City had the right to promote out of rank
order, but only upon reasonable grounds; (2) achievement of
affirmative action goals is reasonable; and (3) the City had a
"clear and relatively heavy burden" to produce reasonable and
understandable evidence of why it deviated from its custom of
promoting in rank order. Benn decided it was permissible for the
City to lower the passing score on the promotional exams to
expand the eligibility lists to meet affirmative action
requirements. Candidates who remained on the 1979 list did not
have to be promoted before the list could be retired and new
eligibility lists used. The contentions made by the Union at
these arbitration hearings are at the core of the plaintiffs'
claims in this case.
During oral argument, the City told us it was not relying on
collateral estoppel in this case, apparently because it felt
these plaintiffs were not parties to the earlier arbitration
proceedings. The trial judge did rely on collateral estoppel
when she ruled against Mahoney. Because we find none of the
plaintiffs has standing to pursue this action, we will not stop
to determine whether collateral estoppel applies to Mahoney's
claim. We are empowered to affirm a summary judgment whenever
the record supports the decision of the trial court. Messenger
v. Edgar, 157 Ill. 2d 162, 177, 623 N.E.2d 310 (1993). We do
note, however, the Union was acting on behalf of the rights of
its members when it entered the Benn and Goldstein arbitration
proceedings.
Plaintiffs allege that out-of-rank promotions violated their
due process rights, breached personnel rules, and breached the
implied contract that the personnel rules created. However, as
members of the Union, any "property interest" in a promotion must
necessarily be defined by the collective bargaining agreement.
Thus, plaintiffs' due process rights with respect to promotions
are governed by the collective bargaining agreement.
Furthermore, the Illinois Public Labor Relations Act states
in section 15(a):
"In case of any conflict between the provisions of this
Act and any other law, executive order, or
administrative regulation relating to wages, hours, and
conditions of employment and employment relations, the
provisions of this Act or any collective bargaining
agreement negotiated thereunder shall prevail and
control. Thus, the collective bargaining agreement
preempts the personnel rules to the extent that they
conflict with the collective bargaining agreement."
In the arbitration cases, arbitrators Benn and Goldstein
determined the City's deviation from the custom of rank order
promotions and promotion of minority candidates with lower or
"non-passing" scores was done in compliance with the requirements
of the Albrecht Consent Decree, as incorporated by the collective
bargaining agreement. They also found that the City's compliance
with the affirmative action provisions within the collective
bargaining agreement constituted "reasonable grounds" for
abandoning the customary practice of rank order promotions.
Collateral estoppel or not, we cannot ignore these findings by
the arbitrators. The Union fought for the position urged by
these plaintiffs and lost. No useful purpose would be served by
allowing the issue of fair representation to be raised now for
the first time in the history of this lawsuit.
Because we find the plaintiffs lack standing, we see
no need to decide the City's claim that laches bars this lawsuit.
Laches is "the neglect or omission to assert a right which,
taken in conjunction with a lapse of time and circumstances
causing prejudice to the opposite party, will operate as a bar to
a suit." Lee v. City of Decatur, 256 Ill. App. 3d 192, 195, 627 N.E.2d 1256 (1994).
Why the court in Lee applied laches does concern us here and
provides another reason we decline to remand this case to the
trial court. The Lee court observed that "prejudice is inherent
in civil service cases" because a detriment and inconvenience to
the public will result if a plaintiff is allowed to pursue his
claim and is successful. Lee, 256 Ill. App. 3d at 197. That is,
if a plaintiff requesting back pay and benefits (as the
plaintiffs do here) is allowed to unreasonably delay in bringing
suit, the public will be required to pay for duplicate services
for a substantial period of time. The longer the delay the
greater the burden on employer and public. Here, for example,
promotion lists have come and gone.
We do not wish to trivialize the long years of dedicated and
courageous public service these plaintiffs have given the
citizens of Chicago. In this case, however, they do not have a
legal remedy.
CONCLUSION
The plaintiffs do not have standing to pursue their claims.
The trial court's grant of summary judgment in favor of the City
is affirmed as to all plaintiffs.
AFFIRMED.
McNAMARA and CERDA, JJ., concur.
[fn1]Suits had been brought in Federal court alleging that
the Chicago Fire Department utilized promotional policies and
practices (including the 1979 lieutenant's promotional exam)
discriminated against African-Americans and Hispanics. On March
31, 1980, a consent decree was entered in the case, U.S. v.
Albrecht, in which the City of Chicago agreed, pending the design
and implementation of non-race biased examinations and
procedures, to promote one minority firefighter for every four
white firefighters. It was further agreed the passing score for
minority candidates on the 1979 promotional exam could be reduced
below 70, but not more than "one standard deviation below the
mean score obtained" by minority candidates on the test.