Stahulak v. City of Chicago

FIRST DIVISION
AUGUST 25, 1997

No. 1-95-3611

JOSEPH STAHULAK, ) APPEAL FROM THE
Plaintiff-Appellee, ) CIRCUIT COURT OF
) COOK COUNTY.
v. )
)
THE CITY OF CHICAGO; THE CHICAGO )
FIRE DEPARTMENT; and RAYMOND E. )
OROZCO, Fire Commissioner of the )
City of Chicago, )
Defendants-Appellants, )
)
and )
)
CHICAGO FIREFIGHTERS UNION, LOCAL )
NO. 2, INTERNATIONAL ASSOCIATION ) HONORABLE
OF FIREFIGHTERS, AFL-CIO-CIC, ) EDWIN M. BERMAN,
Defendant. ) JUDGE PRESIDING.

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Defendants City of Chicago (City), Chicago Fire Department (Department)
and Raymond E. Orozco, Fire Commissioner of the City of Chicago (Commission-
er), appeal a judgment of the circuit court of Cook County vacating an
arbitration award regarding the employment of plaintiff Joseph Stahulak,
issued pursuant to a collective bargaining agreement (CBA) between the City
and defendant Chicago Firefighters Union, Local No. 2, International Associa-
tion of Firefighters, AFL-CIO-CIC (Union). The Union is not a party to this
appeal.
The record on appeal indicates the following facts. The City and the
Union are parties to a CBA that governs the terms and conditions of employment
of City firefighters.
Prior to hiring Stahulak, the City had conducted a background check of
his application. During September 1990, Department personnel went to the
address where Stahulak was staying (apparently in Oak Lawn, Illinois) and
asked where he lived. The Department informed him that he had to be a City
resident. Stahulak attributed his location at that time to ongoing divorce
proceedings.
The City hired Stahulak as a firefighter in December 1990. Section 9.1
of the CBA provides in part as follows:
"B. New employees will serve a probationary period of
one (1) year. Any employee may be discharged during
the probationary period. In such event the employee
shall be notified of the reasons for the discharge at
least 15 days prior to the effective date of the
discharge action. A copy of the notice will be sent
to the Union upon request of the Union, the Employer
shall meet within 10 days of the discharge notice with
a special committee to be designated by the Union to
discuss the reasons for the discharge.

The employee and the Union may present evidence relat-
ing to the validity of the reasons or mitigating
circumstances to the Employer at the meeting. The
Employer shall then review such evidence and issue its
final opinion. The Employer's final action shall not
be subject to the grievance procedure."
Section 16.2 of the CBA provides as follows:
"Section 16.2 Discipline and Discharge
* * * * *
E. The Employer shall conduct disciplinary investiga-
tions when it receives complaints or has reason to
believe an employee has failed to fulfill his respon-
sibilities as an employee and just cause for disci-
pline exists ***.
Prior to taking any final, disciplinary action and
concluding its investigation, the Employer shall
notify the employee of the contemplated measure of
discipline to be imposed, and shall meet with the
employee involved and inform him/her of the reasons
for such contemplated disciplinary action. Copies of
the following documents shall be given to the employee
at this notification and review meeting:
1. Allegation of violations of Rules & Regulations
2. Statement of charges and specifications
3. Employee's initial statement of facts
4. Acknowledgment of notification and review
5. Disciplinary officer's recommendation
6. Copies of the employee's pertinent past disci-
pline
The employee shall be entitled to Union representation
at such meetings and shall be given the opportunity to
rebut the reasons for such proposed discipline."
On October 28, 1991, Edward Altman, the Supervising Investigator of the
Internal Affairs Division of the Department sent a letter to Director of
Personnel John Tully, regarding an investigation launched in February 1991 and
recommending that Stahulak be discharged for violation of the residency
requirement.
Assistant Director of Personnel Charles Stewart delivered to Stahulak a
letter notifying him that he would be discharged on November 16, 1991, for
violating the City residency requirement. Stewart also read section 9.1 of
the CBA to Stahulak at that time. A meeting was held on November 13, 1991,
where Stahulak submitted evidence regarding his residency. Stewart also
testified and submitted evidence. The decision to discharge Stahulak was
affirmed in a memorandum issued the following day. Stahulak was discharged on
November 16, 1991.
The Union filed a grievance on behalf of Stahulak and two other employ-
ees[fn1] that proceeded to arbitration. The issues submitted for arbitration
were as follows:
"Did the City violate  16.2 of the collective agree-
ment by failing to provide the grievants, all of whom
were probationary employees, the procedural safe-
guards, provided therein? If so, what is the remedy?"
The matter was heard by the arbitrator, Alex Elston, on September 25, 1992.
The City argued that section 16.2 of the CBA was not applicable to probation-
ary employees. The Union argued that it had been the past practice of the
City to afford the protections of section 16.2 to probationary employees.
On January 28, 1993, the arbitrator issued an award sustaining the
grievance. However, the arbitrator rejected the Union's argument that the
probationary employees should simply be reinstated. Instead, the arbitrator
decided that the employees should be reinstated to probationary status for the
sole purpose of making the safeguards of section 16.2 available to them,
pending final decisions of the Department.
On March 1, 1993, Stahulak was placed on paid administrative leave.
Stahulak was again discharged on March 29, 1993.
On May 18, 1993, Stahulak filed a two-count complaint against the
defendants in the circuit court of Cook County.[fn2] Count I petitioned the
court to vacate the arbitration award, alleging that the arbitrator exceeded
his powers in fashioning the remedy in this case. Count II was a petition for
a writ of certiorari, alleging that the defendants acted outside the law.
Pretrial proceedings ensued. The parties eventually filed cross-motions
for summary judgment. On September 13, 1995, the trial court granted summary
judgment in favor of Stahulak. The trial court vacated the arbitrator's award
and remanded the matter for arbitration "with court finding that Plaintiff has
been an employee over one year." This appeal followed.
Summary judgment is properly granted if the pleadings, depositions, and
admissions on file, together with any affidavits, show there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Alop v. Edgewood Valley Community Association,
154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21 (1987). The purpose of summary
judgment is to determine whether a triable question of fact exists. Seeger v.
Canale, 241 Ill. App. 3d 177, 184, 607 N.E.2d 687, 692 (1993).
Initially, the appellants argue that the plaintiff lacked standing to
bring this case because the Union did not join in the action and plaintiff
failed to allege that the Union breached its duty of fair representation in
the underlying proceedings. The appellants contend that allowing individual
employees to collaterally attack the Union's resolution of a grievance without
alleging a breach of the duty of fair representation will substantially
undermine the settlement procedures provided by the CBA and create an incen-
tive to eliminate such procedures. Stahulak responds that the appellants have
waived the standing issue in this case.
The record on appeal indicates that appellants raised the standing issue
in connection with their motion to dismiss and in connection with the cross-
motions for summary judgment. The transcript of proceedings shows that the
trial court considered the argument and rejected it. Accordingly, the
argument is not waived on appeal.
The appellants' argument that plaintiff lacked standing to bring this
suit is based on sections 8 and 16 of the Illinois Public Labor Relations Act
(IPLRA). See 5 ILCS 315/8, 16 (1996). Section 16 of the IPLRA provides that
after an arbitration mandated by a CBA, suits alleging breach of the CBA may
be brought by the parties to the CBA. See 5 ILCS 315/16 (1996). Section 8 of
the IPLRA provides that the grievance and arbitration procedures of a CBA
under the IPLRA shall be subject to the Illinois Uniform Arbitration Act,
which in turn provides that a party may move to vacate an arbitration award.
See 5 ILCS 315/8, 710 ILCS 5/12 (1996). The appellants note that the City
and the Union are parties to the CBA, but plaintiff as an individual is not a
party. Accordingly, the appellants conclude that plaintiff cannot bring the
suit at issue here.
The appellants correctly note that federal law interpreting similar
provisions of the Labor Management Relations Act of 1947 (29 U.S.C.  141-191
(1996)) (LMRA) establishes that an employee who fails to allege a breach of
the duty of fair representation by the union in the underlying proceedings
lacks standing to collaterally attack the outcome of grievance procedures.
Shores v. Peabody Coal Co., 831 F.2d 1382, 1383-84 (7th Cir. 1987); Anderson
v. Norfolk & Western Railway Co., 773 F.2d 880, 881-82 (7th Cir. 1985)(and
cases cited therein); see Vaca v. Sipes, 386 U.S. 171, 185-86, 17 L. Ed. 2d 842, 855, 87 S. Ct. 903, 914 (1967).
Plaintiff relies on a decision of the Second District of this court,
Svoboda v. Dept. of Mental Health, 162 Ill. App. 3d 366, 515 N.E.2d 446
(1987), which held that a union member has standing to seek to vacate an
arbitration award without the burden of alleging and proving a breach of the
duty of fair representation by the union in the underlying proceedings.
Svoboda, 162 Ill. App. 3d at 371, 515 N.E.2d at 449. However, in a similar
context, the First District previously had held that an individual union
member was entitled to judicial review only if he could show that the union's
conduct in processing a grievance was arbitrary, discriminatory or in bad
faith. Parks v. City of Evanston, 139 Ill. App. 3d 649, 652, 487 N.E.2d 1091,
1094 (1985). The First District has also held that the complaint of an
individual union member alleging wrongful discharge based on a violation of a
CBA that failed to allege a breach of the duty of fair representation by the
union in the underlying proceedings was legally insufficient. Consentino v.
Price, 136 Ill. App. 3d 490, 495, 483 N.E.2d 297, 300 (1985).
One district of this court is not always bound to follow the decisions
of other districts, although there may be compelling reasons to do so when
dealing with similar facts and circumstances. In re May 1991 Will County
Grand Jury, 152 Ill. 2d 381, 398, 604 N.E.2d 929, 938 (1992). The Second
District has ruled directly on the standing issue. In so ruling, the Second
District appears to have been unaware that the First District has decided
similar issues in a manner that would suggest a contrary result, though it was
not bound to follow them. In the same manner, we turn to the issue of whether
Svoboda offers compelling reasons for holding that Stahulak has standing in
this case.
The Svoboda court relied primarily on section 6(b) of the IPLRA both to
interpret the plain language of section 16 of the IPLRA and to distinguish
Illinois law from federal case law. Section 6(b) of the IPLRA provides that:
"Nothing in this Act prevents an employee from pre-
senting a grievance to the employer and having the
grievance heard and settled without the intervention
of an employee organization; provided that the exclu-
sive bargaining representative is afforded the oppor-
tunity to be present at such conference and that any
settlement made shall not be inconsistent with the
terms of any agreement in effect between the employer
and the exclusive bargaining representative."
The Svoboda court concluded that it was not the legislature's intent to allow
suits to vacate an arbitrator's award to be brought by unions which have
instituted grievance procedures on behalf of their members, but not suits by
members who have brought grievance procedures on behalf of themselves.
Svoboda, 162 Ill. App. 3d at 369, 515 N.E.2d at 448. The Svoboda court also
distinguished Vaca on the grounds that given section 6(b) of the IPLRA, the
union was "not vested with the sole power to invoke the higher stages of the
grievance process." Svoboda, 162 Ill. App. 3d at 371, 515 N.E.2d at 449.
However, as the appellants note in this case, language virtually
identical to that of section 6(b) of the IPLRA appears in the LMRA. See 29
U.S.C.  159(a) (1996). As noted above, federal cases interpreting the LMRA
hold that individual union members generally lack standing to collaterally
attack grievance proceedings. Moreover, the plain text of section 6(b)
demonstrates that the ability of an individual union member to act outside the
union in such matters is not absolute. For example, any settlement made
without the union must be consistent with the relevant CBA. Perhaps most
important for the purposes of this case, nothing in section 6(b) grants
individual union members the right to take further action in the event that
the grievance is not settled without the intervention of the union.
The CBA at issue here demonstrates how section 6(b) was implemented by
the parties to the agreement. The grievance procedure set forth in section
10.2 of the CBA provides for a three-step process. Although an employee may
take the first step -- initiating a grievance -- as an individual, the CBA
clearly contemplates that any subsequent steps -- including the invocation of
arbitration -- are to be initiated by the Union in its capacity as a party to
the CBA.
In sum, under section 6(b) of the IPLRA and the CBA involved in this
case, the Union is vested with the sole power to invoke the higher stages of
the grievance process. Accordingly, Svoboda does not offer a compelling
reason for holding that Stahulak has standing in this case.
The Svoboda opinion also discusses federal law and concludes that these
cases hold that union employees do have standing in cases such as this, but
"encumber" such employees with the burden of alleging and proving fraud,
deceit or a breach of the duty of fair representation by the union in the
underlying proceedings. See Svoboda, 162 Ill. App. 3d at 369-71, 515 N.E.2d
at 448-49. However, such a reading of the federal cases overlooks the fact
that a suit challenging the quality of a union's representation is far
different from the sort of purely collateral attack at issue here. Indeed,
under Illinois law, a union's breach of duty of fair representation is an
unfair labor practice under the IPLRA, which initially falls under the
exclusive jurisdiction of the Illinois State Labor Relations Board, not the
circuit court. Foley v. American Federation of State, County, and Municipal
Employees, Council 31, Local No. 2258, 199 Ill. App. 3d 6, 10, 556 N.E.2d 581,
583 (1990). Accordingly, this aspect of Svoboda also does not offer a
compelling reason for holding that Stahulak has standing in this case.
The Svoboda court ultimately concluded as follows:
"While we are mindful that it is often the case that
the individual employee must give up certain rights to
make a union viable, we do not believe that giving up
one's ability to protect his or her job is one such
right that can or should be given up." Svoboda, 162
Ill. App. 3d at 373, 515 N.E.2d at 450.
Such an assertion overlooks the fact that the individual employee's claims in
cases such as this one ultimately flow from the IPLRA and the CBA negotiated
between the City and the Union.
Historically, an employee was considered to be the servant of the master
and could be discharged at any time without cause or notice. See, e.g.,
Carter Coal Co. v. Human Rights Commission, 261 Ill. App. 3d 1, 8, 633 N.E.2d 202, 207 (1994). The individual employee did not have a judicially enforce-
able right to protect his or her job that could be "given up." It is legisla-
tion such as the IPLRA that has made inroads into the employment-at-will
doctrine, with employees gaining bargaining strength and job security through
union representation and the collective bargaining process. See Carter Coal
Co., 261 Ill. App. 3d at 8, 633 N.E.2d at 207. Allowing individual unionized
employees to collaterally attack their union's resolution of a grievance
(including acquiescence in an arbitration award) without showing that the
union thereby breached its duty of fair representation would substantially
undermine the settlement machinery provided by a CBA, destroy the public
employer's confidence in the union's authority and ultimately return employees
to the vagaries of independent, unsystematic negotiation. See Vaca, 386 U.S.
at 191, 17 L. Ed. 2d at 858, 87 S. Ct. at 917. Accordingly, Svoboda is not
persuasive on this point.
In sum, Svoboda offers no compelling reason for holding that Stahulak
has standing in this case, given the facts and circumstances presented by the
record on appeal. In the First District, an individual union member is
entitled to judicial review of a grievance proceeding (including arbitration)
only if he or she can show that the union's conduct in processing the griev-
ance was arbitrary, discriminatory or in bad faith. See Parks, 139 Ill. App.
3d at 652, 487 N.E.2d at 1094. In this case, no such conduct was alleged or
shown.
Plaintiff correctly notes, however, that in raising the standing issue,
the appellants did not specifically rely on Parks, Consentino or the federal
cases cited in the appellants' brief. Thus, the standing issue was not
presented as squarely as it might have been. Moreover, as in Svoboda and
Anderson, we agree that the plaintiff has suffered an injury. See Svoboda,
162 Ill. App. 3d at 368, 515 N.E.2d at 447; Anderson, 773 F.2d at 882-83.
Given these circumstances, it is not inappropriate to comment briefly on the
merits of the dispute. See Anderson, 773 F.2d at 882-83.
A court's review of an arbitrator's award is extremely limited.
American Federation of State, County and Municipal Employees, AFL-CIO v.
State, 124 Ill. 2d 246, 254, 529 N.E.2d 534, 537 (1988) (AFSCME). A court
must construe an award, if possible, as valid. AFSCME, 124 Ill. 2d at 254,
529 N.E.2d at 537. The scope of an arbitrator's power generally depends upon
what the parties agree to submit to arbitration. AFSCME, 124 Ill. 2d at 254,
529 N.E.2d at 537. A public labor arbitration award must be enforced if the
arbitrator acts within the scope of his or her authority and the award draws
its essence from the CBA. AFSCME, 124 Ill. 2d at 254, 529 N.E.2d at 537. An
arbitrator is confined to interpretation and application of the CBA and cannot
dispense his or her own brand of industrial justice. See AFSCME, 124 Ill. 2d
at 255, 529 N.E.2d at 538. Nevertheless, within the scope of the CBA, the
arbitrator must have flexibility in formulating a remedy to meet a wide
variety of situations, as the drafters of a CBA may never have thought of what
specific remedy should be awarded to meet a particular contingency. See
AFSCME, 124 Ill. 2d at 254-55, 529 N.E.2d at 537-38.
In this case, the arbitrator determined that the plaintiff was dis-
charged without receiving procedural protections due him under the CBA,
despite the plaintiff's status as a probationary employee. The issue of the
remedy for this violation was expressly submitted to the arbitrator. The
arbitration award reinstated plaintiff as a probationary employee, in order
that he could avail himself of the procedural protections due him under the
CBA, including the opportunity to rebut the charge against him.
The purpose of a remedy in contract is to place the injured party into
the position he or she would have occupied if the contract had been performed,
not a better position. E.g., O'Neil v. Continental Bank, N.A., 278 Ill. App.
3d 327, 662 N.E.2d 489 (1996). The remedy imposed by the arbitration award in
this case meets that standard and therefore must be enforced, even where the
reviewing court disagrees with the arbitrator's judgment on the merits.
AFSCME, 124 Ill. 2d at 255, 529 N.E.2d at 538. Accordingly, even if the
plaintiff had standing in this case, it would be error to vacate the arbitra-
tion award.
As for Count II of the complaint, plaintiff sought a writ of certiorari
on the ground that the defendants did not proceed according to law. However,
plaintiff has completely failed to identify what law was not followed by any
of the defendants. Rather, plaintiff maintains that the arbitration award
violated public policy, a ground not alleged by the plaintiff in the circuit
court. The arbitrator was not named as a defendant.
However, assuming arguendo that these defects are not fatal to plain-
tiff's claim, we note that the case law plaintiff cites to argue that the
award violates public policy address the question of whether an employee's
probationary period may be extended retroactively by legislation. In this
case, unlike the cases cited by the plaintiff, the discharge proceedings began
prior to the end of the probationary period. Unlike the cases cited by the
plaintiff, the probationary period was effectively extended as the result of a
grievance procedure initiated on plaintiff's behalf. Moreover, the arbitra-
tion award, unlike the legislation at issue in the cases cited by the plain-
tiff, is specifically intended to apply to this plaintiff. This is not a case
where the rules were changed in the middle of the game. Furthermore, the
cases cited by the plaintiff simply do not establish a general public policy
that probationary employment periods can never be extended. Thus, assuming
arguendo that plaintiff had standing, as a matter of law, plaintiff could not
have established a claim for a writ of certiorari.
For all of the aforementioned reasons, the judgment of the circuit court
of Cook County is reversed; the case is remanded with instructions to dismiss
the complaint.
Reversed and remanded.
BUCKLEY, J., and GALLAGHER, J., concur.
[fn1] No issue is raised in this appeal regarding the other employees.
[fn2] No issue was raised in this case regarding the timeliness of
plaintiff's complaint.