Carla L. Jones v. State of Illinois

ORDER

EPSTEIN, J

This is a wrongful employment termination claim by a state employee who is a member of a union (the American Federation of State County and Municipal Employees, Council 3 [ AFSCME or the Union ]) and whose employment is governed by a collective bargaining agreement between the Union and the State (the CBA ).

Ms. Jones claim seeks $40,944 in compensatory damages for her October, 1999 discharge from her position as a Youth Supervisor at the [*415] Illinois Youth Center, in St. Charles, by the Respondent s Department of Corrections ( IDOC ). She alleges that her dischar ge was not for cause as required by the CBA as well as by State civil service regulations.

This wrongful discharge claim is before us on the Respondent s motion to dismiss ( motion ), which asserts a failure by the Claimant to exhaust her antecedent remedies - in violation of the mandate of ⁄25 of the Court of Claims Act (705 ILCS 505/25) and our Rule 60 (74 Ill.Admin.Code ⁄790.60). The Claimant filed objections to the motion, and the Respondent has replied.

The Motion to Dismiss - Exhaustion of Remedies

In its motion, the Respondent asserts that the Claimant failed to exhaust her prior remedies in three closely-related ways: (1) by failing to pursue the arbitration remedy afforded by the CBA; (2) by waiving her procedural rights against IDOC, including any right to sue, in a settlement (styled as a

Resolution Prior to Arbitration, dated May 4, 2000) in which IDOC and the Union (on behalf of Ms. Jones and itself) agreed to a voluntary resignation (see Motion, Exh. 4) (the Settlement ); and (3) by failing to sue the Union concerning its disposition of her grievance in the Settlement.

Respondent contends that the Union is the exclusive agent for the Claimant in the grievance process (although it erroneously uses the term

exclusive bar gaining agent in the grievance context), and emphasizes that the CBA contains a procedural [ bail-out ] option for AFSCME members to abandon the grievance process and instead press their employment claims against the State with the Civil Service Commission (Article 5, ⁄3(d), AFSCME-State of Illinois Agreement, July 1, 1997-June 30, 2000):

If the grievant has filed an appeal with the Civil Service Commission over a subject matter identical to that employee s grievance, the parties agree that the grievance shall be treated as withdrawn, unless the employee withdraws his/her appeal to the Civil Service Commission prior to a Civil Service Commission hearing .

Claimant s Response

In response, the Claimant contends (A) that she took the grievance process under the CBA as far as she could, only to have the Union block further proceedings; (B) that the Union did not have the authority to bind her to the Settlement (which she did not sign or agree to); and (C) that even if the Union is found to be her sole representative during the grievance procedure, it no longer represented her from the time that it decided not to pursue the grievance any further. (Claimant s Objection to Motion to Dismiss, ƒ5.)

Analysis

There are technically two procedural issues presented by the Respondent s motion: (1) whether this claim is barred by the Claimant s alleged failure to exhaust either her contract remedy (arbitration) under the [*416] CBA or her statutory remedy (in the Civil Service Commission, as permitted by the CBA), and if so, whether this court should dismiss the claim with prejudice (as terminally barred) or without prejudice (if the requisite procedural exhaustion is still open to the Claimant); and (2) whether the Settlement effected between the Union and IDOC terminated this dispute.

The threshold issue is whether, under the terms of the CBA, AFSCME could and did bind the Claimant to the May 4, 2000 settlement. If so, then this claim is barred by the settlement as well as (redundantly) by the Claimant s waiver and consequent non-pursuit of the procedures otherwise available to her before coming to this court. If not, then Claimant now has the burden of justifying her failure to pursue either arbitration or an appeal to the Civil Service Commission following the ineffectual settlement by the Union, as the record does not show either such pursuit.

Claimant maintains, without citation of authority, that the Union ... cannot bind Ms. Jones unilaterally to renounce her right to pursuing [sic] legal proceedings. (Objection to Motion to Dismiss, at 3.) Even assuming that to be true, arguendo, we would still have to find Ms. Jones to have failed to exhaust her available remedies, as she offers no justification for not doing so.

We are also unprepared to accept Claimant s view of the Union s lack of authority to bind her in the grievance process, without some contractual, historical or precedential basis to persuade us. Claimant offers no such argument.

Although we agree with the Claimant that the respondent s arguments in support of AFSCME s contractual authority, under the CBA, to bind its members in the grievance process are mostly unpersuasive (Claimant rebutted all but one of them), we nevertheless find repeated language in the CBA that appears to authorize the Union to represent its grieving members in the grievance process and to control that process on behalf of the grievant.

The CBA quite clearly gives the Union (rather than the employee) control of the grievance process after Step 1 when it mandates the Union to

present the grievance at the Step 2, Step 3 and Step 4 grievance levels (see, CBA, Art. V, ⁄2, Steps 2, 3, 4). The CBA also provides that the Union, as a representative participant, is vested with suf ficient authority ... to settle the grievance if possible (Art. V, ⁄1). Finally , the agreement makes the Union rather than the employee the critical party in the arbitration procedures (Art. V, ⁄2(c), ⁄7). Although the key term represent is not defined in the CBA, which is hardly a model of drafting clarity, its usage in the agreement text is more supportive of the State s view than the Claimant s.

We also find the Article 5, ⁄3(d) bail-out clause inferentially persuasive to support a construction of the CBA to authorize binding representation by the Union in the grievance process. The bail-out clause, which allows the individual grievant to pursue the regular statutory State procedures in lieu of the Union-represented contract grievance scheme appears to be a [*417] mechanism to allow the individual union member/employee to bail out of the Union representation and control as well as to bail out of the grievance/ arbitration process.

Under the foregoing language of the CBA, which points consistently in the direction of Union control rather than employee-member control of the grievance, and in the absence of any serious argument to the contrary by the claimant, we conclude that the Union had the authority to effect the Settlement for, and to bind, the claimant under the terms of the CBA.

Because the Claimant was represented in the grievance process and settlement of her grievance by the Union, which had authority to act for her, she is bound by the settlement unless the Union somehow breached its duty of fair representation to her, which Claimant has not established in a court or other appropriate forum of proper jurisdiction (for that member-Union dispute). She therefore cannot now come here to contest the Union s contractually-authorized action settling the claim on her behalf and declining to pursue further relief. Padilla v. State of Illinois, 51 Ill.Ct.Cl. 248, 252 (1999).

Finally, we consider the Claimant s contention that the Union no longer represented her [Ms. Jones] from the time that it decided not to pursue the grievance any further. (Claimant s Objection, at 3.) Claimant offers no contract language or authority in support of this novel argument. We reject it. This argument also leads nowhere: there is no basis for concluding that the Union had ceased representing Ms. Jones at the time of the settlement. Ms. Jones might have cut off the Union s representation by invoking the bail-out clause, in which event she would have had to pursue her potential remedy in the Civil Service Commission. On this record she did neither.

Conclusion

For the foregoing reasons, we find that the Claimant is barred from from pursuing her underlying - and settled - claim here.

Wherefore, it is hereby ORDERED:

1. Respondent s motion to dismiss this claim for failure to exhaust

antecedent remedies is granted;

2. This claim is dismissed, as settled, with prejudice.