Policemen's Benevolent Labor Committee, Local 501 v. County of DuPage

2020 IL App (2d) 200117-U

• Court: Appellate Court of Illinois
• Decided: June 23, 2020
• Docket: 2-20-0117
• Status: Unpublished

Opinion

2020 IL App (2d) 200117-U No. 2-20-0117 Order filed June 23, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

POLICEMEN’S BENEVOLENT LABOR ) Appeal from the Circuit Court COMMITTEE, LOCAL 501, ) of Du Page County. ) Plaintiff-Appellant, ) ) v. ) No. 16-CH-108 ) THE COUNTY OF DU PAGE, SHERIFF ) JOHN ZARUBA, DANIEL CRONIN, and ) THE DU PAGE COUNTY BOARD, ) ) Defendants-Appellants ) ) (Dan Calabrese, Veronica Caunca, Rick Feeney,) Phil Heck, LaTosha Henderson, Michael ) Ireland, Amy Jovanovich, John Kaldis, Bernard ) Moe, Shaun Murray, Sandra Neuberg, James ) Nolan, Thomas Repa, Joseph Rodriguez, Mark ) Solomon, Steven Stutts, Chris VanHoose, ) Honorable Mark Young, and James Zeigler, Petitioners- ) James F. McCluskey, Appellees). ) Judge, Presiding.

JUSTICE ZENOFF delivered the judgment of the court. Justices Schostok and Hudson concurred in the judgment.

ORDER

¶1 Held: The appellate court vacated the orders of the trial court allowing petitioners to intervene and sending the matter to arbitration where the trial court did not have 2020 IL App (2d) 200117-U

subject matter jurisdiction to determine the adequacy of the union’s representation of petitioners.

¶ 2 On November 27, 2018, the trial court granted petitioners’, Dan Calabrese, Veronica Caunca,

Rick Feeney, Phil Heck, LaTosha Henderson, Michael Ireland, Amy Jovanovich, John Kaldis,

Bernard Moe, Shaun Murray, Sandra Neuberg, James Nolan, Thomas Repa, Joseph Rodriguez,

Mark Solomon, Steven Stutts, Chris VanHoose, Mark Young, and James Zeigler, petition to vacate

the order dismissing the case. On January 10, 2020, the court entered an order compelling

arbitration between plaintiff, Policeman’s Benevolent Labor Committee, Local 501 and

defendants, the County of Du Page, Sheriff John Zaruba, Daniel Cronin, and the Du Page County

Board. Defendants appealed the arbitration order and plaintiffs joined in that appeal, with both

parties asserting that the trial court erred in sending the case to arbitration. For the following

reasons, we vacate the orders of the trial court.

¶3 I. BACKGROUND

¶ 4 Either in December 2014 (according to defendants) or in March 2015 (according to plaintiff),

plaintiff and defendants entered into a collective bargaining (Agreement), which ran from March

26, 2012, through November 30, 2015, and provided for automatic renewals. The Agreement

contained a wage scale that effectively increased the wages of plaintiff’s members retroactive to

March 2012. In April 2015, plaintiff filed a grievance with defendants seeking retroactive pay for

certain individuals, including petitioners, who were members and employees during the effective

period, but were no longer members and employees at the time the Agreement was ratified.

Defendants refused to respond to the substance of the grievance, contending that the former

members and employees were not covered by the Agreement.

¶ 5 On January 26, 2016, plaintiff filed a complaint seeking to force arbitration on the grievance.

On April 22, 2016, the trial court, Judge Bonnie M. Wheaton presiding, granted

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defendants’ motion to dismiss the complaint. On December 20, 2016, we determined that it was

the function of the arbitrator to decide whether the case was arbitrable, and remanded the cause

with instructions to refer it to the arbitrator. Policemen’s Benevolent Labor Committee, Local

501 v. County of Du Page, 2016 IL App (2d) 160373-U, ¶¶ 25-26 (Policemen’s I).

¶ 6 The parties entered into a settlement agreement before the matter was sent to arbitration. On

April 25, 2017, the trial court dismissed the case, noting that the parties had “resolved this matter

along with the underlying grievances.”

¶ 7 On April 25, 2018, petitioners filed a petition to vacate the order dismissing the case under

section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)). The

petition alleged that the “agreed resolution” between plaintiff and defendants granted retroactive

pay to certain members and employees but excluded petitioners, who received no retroactive

compensation. The petition further alleged that petitioners were not notified of the proposed

resolution and that they were excluded from the vote approving the agreed resolution. According

to petitioners, the court would not have entered its order of dismissal based on the agreed resolution

had it known these facts at the time of its dismissal.

¶ 8 Defendants responded that plaintiff was the sole and exclusive bargaining representative in

this matter, and that the individual petitioners had no standing to advance a grievance or bring the

section 2-1401 petition.

¶ 9 Petitioners replied that the section 2-1401 petition should be granted because (1) they were the

“true parties in interest,” (2) their interests were not represented by plaintiff, and (3) they had a

right to intervene when their interests were not adequately represented.

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¶ 10 On November 27, 2018, the trial court, Judge James F. McCluskey presiding,1 granted the

section 2-1401 petition and vacated the April 25, 2017, order of dismissal, noting that petitioners

acted with due diligence in seeking resolution of their meritorious claims. The court further noted

that petitioners “have a right to intervene” because it found that representation by plaintiff was

inadequate to protect petitioners’ interest in the settlement agreement based on the fact that

petitioners were not notified of the agreement. Thus, the trial court ordered that petitioners could

join in the settlement and/or participate in the arbitration mandated by the appellate court.

¶ 11 Petitioners then issued a series of subpoenas seeking documents from plaintiff and its parent

organization. On May 6, 2019, plaintiff moved to dismiss petitioners’ claims for lack of subject

matter jurisdiction, arguing that the Agreement only permitted the union, not individual

employees, to compel arbitration. To the extent that petitioners were arguing that their interests

were not fairly represented by the union, plaintiff asserted that the Illinois Labor Relations Board

(Board) has exclusive jurisdiction to determine whether a union breached its duty of fair

representation. Therefore, plaintiff argued that the trial court should dismiss the section 2-1401

petition because it did not have subject matter jurisdiction to determine that petitioners’ interests

were not fairly represented by plaintiff, which was the basis of its November 2018 order that

granted the section 2-1401 petition.

¶ 12 On August 19, 2019, the trial court denied plaintiff’s motion to dismiss. On January 10, 2020,

after it became clear that a settlement agreement was not forthcoming, the court stated that it was

compelled to comply with the mandate of the appellate court and order the case to

1 On July 26, 2018, Judge Wheaton recused herself “for reasons stated on record,” but a

transcript of that proceeding is not included with this record.

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arbitration. Defendants timely appealed the January 10 order pursuant to Illinois Supreme Court

Rule 307(a)(1) (eff. Nov. 1, 2017), and plaintiff timely joined the appeal.

¶ 13 II. ANALYSIS

¶ 14 Defendants assert that petitioners lacked standing to litigate their claims before the trial court.

Defendants argue that petitioners could seek judicial review of this matter only if they first

demonstrated that plaintiff breached its duty of fair representation, and such a determination is the

exclusive jurisdiction of the Board. Defendants emphasize that petitioners made no claim of a

breach of fair representation before the Board, and, therefore, had no standing to litigate their

claims before the court.

¶ 15 Plaintiff likewise asserts that the Board has exclusive jurisdiction to consider whether a union

adequately represented its members. According to plaintiff, the Board’s exclusive jurisdiction

deprived the trial court of subject matter jurisdiction to reach a finding on the question of adequate

representation, which was the basis of its granting the section 2-1401 petition to vacate.

¶ 16 Petitioners respond that plaintiff and defendant are improperly attempting to argue that the

trial court erred in granting the section 2-1401 petition and in denying defendants’ motion to

dismiss, because those rulings “were not appealed in a timely fashion.” Petitioners’ position is that

the only question on review is whether the trial court abused its discretion by ordering the cause

to arbitration, which they argue is settled in favor of petitioners by the “law of the case doctrine”

based on our order in Policemen’s I. Moreover, petitioners argue that they clearly had standing

because plaintiff did not represent their interests and the “facts of this case take it outside the Labor

act [sic].”

¶ 17 A. Issue on Appeal

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¶ 18 The amended notice of appeal filed by defendants, as well as plaintiff’s notice that it was

joining the appeal, challenged the order of January 10, 2020, which sent the matter to arbitration.

At the hearing that preceded the January 10 order, the court heard arguments on whether the case

should be sent to arbitration. Plaintiff argued that if petitioners thought they had not been

adequately represented, their remedy was to file an unfair labor practice claim with the Board, and

that they failed to do so. Defendants argued that it was not in the court’s purview to determine

whether the union treated the petitioners fairly, and that the petitioners were required to make that

argument before the “proper venue,” which was the Board. Petitioners countered that once

litigation had commenced, plaintiff had an obligation to ensure that every member of the union

received his or her pay according to the terms of the Agreement, and that petitioners were at least

entitled to notice of the settlement agreement.

¶ 19 Petitioners note in their brief that neither plaintiff nor defendants took interlocutory appeals

from the trial court’s orders that granted the section 2-1401 petition and denied plaintiff’s motion

to dismiss. Petitioners conclude that the court made findings that they had a right to intervene, and

that these findings were not timely appealed. Petitioners are incorrect. Illinois Supreme Court Rule

307 (eff. Nov. 1, 2017) confers upon parties the option to appeal certain interlocutory orders before

a final judgment is entered. An appeal under Rule 307 is not required, but rather is permissive in

nature. Salsitz v. Kreiss, 198 Ill. 2d 1, 11-12 (2001). Therefore, the fact that no interlocutory

appeals were taken from the court’s previous orders is of no consequence in this appeal. The issue

before this court is what was before the trial court when it entered its January 10 order. Plaintiff

and defendants both argued that the trial court did not have authority to consider the adequacy of

the union’s representation of petitioners. Petitioners disputed these assertions. Thus, we conclude

that the issue of inadequate representation was before the court on

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January 10, 2020, and we will consider the court’s finding in that regard as part of this appeal.

Moreover, as explained below, the trial court lacked subject matter jurisdiction of petitioners’

claims, so all orders that the court entered with respect to petitioners’ section 2-1401 petition were

void.

¶ 20 B. Subject Matter Jurisdiction

¶ 21 Subject matter jurisdiction refers to the general class of cases to which a court has the power

to hear and decide. In re M.W., 232 Ill. 2d 408, 414 (2009). If a court lacks subject matter

jurisdiction, any order entered in the matter is void ab initio, and may be attacked at any time. In

re M.W., 232 Ill. 2d at 414. Whether a court had subject matter jurisdiction to review a claim is

a question of law that we review de novo. Knox v. Chicago Transit Authority, 2018 IL App (1st)

162265, ¶ 16.

¶ 22 The Agreement negotiated between plaintiff and defendants forms the basis of petitioners’

claims that they are entitled to retroactive pay. Absent the Agreement, petitioners would have no

conceivable claim that they were entitled to retroactive pay.

¶ 23 Collective bargaining enables employees to pool their economic strength to improve

conditions of employment. Stahulak v. City of Chicago, 184 Ill. 2d 176, 184 (1998). In exchange

for such benefits, employees relinquish their rights to bargain individually with their employer.

Stahulak, 184 Ill. 2d at 184. If individual employees could compel arbitration of their grievances,

“the settlement machinery provided by the contract would be substantially undermined, thus

destroying the employer’s confidence in the union’s authority and returning the individual grievant

to the vagaries of independent and unsystematic negotiations.” See Stahulak, 184 Ill. 2d at 184

(quoting Vaca v. Snipes, 386 U.S. 171, 191 (1967)). Therefore, individual employees who are

represented by a union may seek a court order to compel arbitration only if they can first

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demonstrate that their union breached its duty of fair representation. See Stahulak, 184 Ill. 2d at

184.

¶ 24 Fair representation claims are subject to the comprehensive scheme of remedies and

administrative procedures provided for in the Illinois Public Labor Relations Act (Act) (5 ILCS

315/1 et seq. (West 2018)). Foley v. American Federation of State, County, and Municipal

Employees, Council 31, Local No. 2258, 199 Ill. App. 3d 6, 10 (1990). The Act confers upon the

Board exclusive jurisdiction over fair representation claims. Foley, 199 Ill. App 3d at 10. If fair

representation claims could be heard before the trial courts as well as the Board, this would

inevitably lead to inconsistent judgments, forum shopping, and increased amounts of unnecessary

litigation. Foley, 199 Ill. App 3d at 11.

¶ 25 Petitioners assert that they had a right to intervene under section 2-408(a)(2) of the Code,

which provides that a party may intervene in an action “when the representation of the applicant’s

interest by existing parties is or may be inadequate and the applicant will or may be bound by an

order or judgment in the action.” (Emphasis added.) 735 ILCS 5/2-408(a)(2) (West 2018).

Petitioners contend that plaintiff failed to adequately represent their interests because it used their

claims as leverage to reach a settlement agreement that benefited current union members but

excluded petitioners. Petitioners further complain that plaintiff failed to notify them of the

settlement agreement, even though it affected their economic rights. On November 27, 2018, in

granting the section 2-1401 petition, the trial court agreed with petitioners, finding that they had a

right to intervene because “representation of the union and their attorneys the Court finds was

inadequate to protect their interest in the settlement of the case.”

¶ 26 Petitioners assert that the facts of this case take it outside the confines of the Act, attempting to

make a distinction between pre-litigation and post-litigation claims. We disagree. The stated

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purpose of the Act is to regulate labor relations between public employers and employees,

including their representatives, in negotiations of wages arising under collective bargaining

agreements, which precisely describes the facts of this case. 735 ILCS 315/2 (West 2018). We

agree that petitioners had a right to intervene if they demonstrated that plaintiff failed to adequately

represent their interests. However, as discussed above, the Act provides that it is the exclusive

power of the Board, not the trial court, to determine whether a union fairly represented its members.

Foley, 199 Ill. App 3d at 10. In other words, the trial court did not have subject matter jurisdiction

to determine the adequacy of representation and permit the intervention. Accordingly, the court’s

orders stemming from that determination—the November 27, 2018, order granting the section 2-

1401 petition and the January 10, 2020, order that sent the cause to arbitration—are void ab initio.

In re M.W., 232 Ill. 2d at 414.

¶ 27 The subject matter jurisdiction issue is dispositive of this appeal. There is no need to

address the merits of the standing issue raised by defendants.

¶ 28 III. CONCLUSION

¶ 29 For the foregoing reasons, we vacate the November 27, 2018, and the January 10, 2020, orders

of the circuit court of Du Page County.

¶ 30 Orders vacated.

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