Peoria Firefighters Local 544 v. Korn , 229 Ill. App. 3d 1002 ( 1992 )

JUSTICE SLATER,

dissenting:

The majority opinion denies to the petitioners their right to elect the arbitration procedure provided in the collective bargaining agreement. I respectfully dissent.

The grievance which is at issue here does not challenge the commission’s action, which has been affirmed on administrative review. The pending grievance alleges that the personnel actions instituted against Blunier and Ochs constitute a “lock out.” In addition, Blunier and Ochs allege they have been dismissed without just cause. The collective bargaining agreement prohibits the city from authorizing “any lock out of employees covered by this agreement” and provides that “no employee shall be discharged *** without just cause.”

The Illinois Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.) establishes the right to arbitrate labor disputes. Section 8 specifically allows for a grievance procedure as follows:

“The collective bargaining agreement negotiated between the employer and the exclusive representative shall contain a grievance resolution procedure which shall apply to all employees in the bargaining unit and shall provide for final and binding arbitration of disputes concerning the administration or interpretation of the agreement unless mutually agreed otherwise.” (Ill. Rev. Stat. 1989, ch. 48, par. 1608.)

The statute mandates that parties to a collective bargaining agreement arbitrate all disputes over the administration and interpretation of the agreement unless they mutually agree not to arbitrate the dispute. The city has the burden to establish that the petitioners have mutually agreed with the city not to proceed with arbitration. No such position was ever agreed to by the petitioners.

The collective bargaining agreement, which is retroactive to January 1, 1986, clearly establishes the right of Blunier and Ochs (as members of the bargaining unit) to grieve disciplinary action initiated by the city. Under article 5 of the agreement, a “grievance” is broadly defined as a “dispute arising between the parties concerning a violation or alleged violation of this agreement *** or disciplinary action taken by the City.” Under article 11.2 of the agreement, members of the bargaining unit are given “the right to have disciplinary action reviewed by the Fire and Police Commission” in place of the grievance procedure provided for in article 5. Article 11.2 establishes the procedures by which members of the bargaining unit may knowingly elect to waive their rights to one or the other of the two options. Blunier and Ochs never affirmatively elected to waive their rights to the grievance procedure which became available to them under the retroactive collective bargaining agreement.

Under the collective bargaining agreement, Blunier and Ochs were entitled to pursue grievance/arbitration procedures or commission procedures, but not both. The majority finds that the grievance is not arbitrable because Blunier and Ochs participated in commission proceedings and administrative review of those proceedings. However, at the time the commission proceedings were commenced, Blunier and Ochs did not have the right to proceed by way of the grievance procedure. The grievance procedure was created on July 7, 1988, when the collective bargaining agreement was executed. By its own terms, the effective date of the agreement was retroactive to January 1, 1986. Blunier and Ochs did not waive their option of review of the disciplinary action through the grievance procedure by continuing to participate in administrative review of the commission’s proceedings. In fact, during the review phases of the commission proceedings, Blunier and Ochs did file and cause to be processed, in accord with the collective bargaining agreement, the grievance here in question. Blunier and Ochs, in order to waive their rights to the grievance procedure under the agreement would, necessarily, have had to execute a waiver in writing which they did not do. The petitioners’ continued participation in the administrative review phases of the earlier commission proceedings did not amount to waiver of their grievance rights under the collective bargaining agreement.

It is asserted that if Blunier and Ochs are allowed to have this matter submitted to arbitration, they will be getting a “second bite of the apple.” Prior proceedings act as a bar under the doctrines of res judicata and collateral estoppel to protect litigants from the burden of retrying an identical cause of action. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 447 N.E.2d 834.) The Illinois Supreme Court, in Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 432, 530 N.E.2d 431, 438, however, has recognized that a contractual grievance and a statutory discharge claim “are different, and fundamentally unrelated, claims.”

The issues as to whether there was “just cause” for the discharge and as to whether a “lock out” occurred could not have been raised by the petitioners prior to the date of July 8, 1988, when the collective bargaining agreement was created. Statutory “just cause” and contractual “just cause” are not interchangeable. As stated by our supreme court in Ryherd, “many discharges allowed under our State law are certainly prohibited by the ‘just cause’ provisions of a typical collective-bargaining agreement.” Ryherd, 124 Ill. 2d at 428, 530 N.E.2d at 435.

In Village of Creve Coeur v. Fletcher (1989), 187 Ill. App. 3d 116, 543 N.E.2d 323, this court held that a suspended policeman who had been subjected to disciplinary proceedings before the Board of Fire and Police Commissioners was not entitled to file a grievance and compel arbitration under the collective bargaining agreement. We concluded that allowing the grievance procedure to take place after commission proceedings could lead to contradictory results. Creve Coeur does not preclude the relief requested by the petitioners herein. The collective bargaining agreement here in question came into being after the commission proceedings had been commenced and provided for an election by the fire fighters which required a specific act on their part to proceed with one avenue or another.

For these reasons, I would reverse the trial court’s order dismissing the petition to compel arbitration.