Cessna v. City of Danville
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0185
Case Date: 04/22/1998
NO. 4-97-0185
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ANITA CESSNA, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Vermilion County
THE CITY OF DANVILLE, a Municipal ) No. 96LM324
Corporation; LOCAL 214D of UNITED FOOD & )
COMMERCIAL WORKERS INTERNATIONAL UNION, )
AFL-CIO and CLC; and THE UNITED FOOD & )
COMMERCIAL WORKERS INTERNATIONAL UNION, ) Honorable
AFL-CIO and CLC, ) Gordon R. Stipp,
Defendants-Appellees. ) Judge Presiding.
__________________________________________________________________
PRESIDING JUSTICE GARMAN delivered the opinion of the
court:
Plaintiff Anita Cessna was discharged in September 1995
from her employment as a bus driver for the Danville Mass Transit
Company, which is owned and operated by defendant City of Danville
(City). In May 1996, she filed a four-count complaint in the
circuit court of Vermilion County against the City; Local 214D of
United Food & Commercial Workers International Union, AFL-CIO and
CLC (Local Union); and United Food & Commercial Workers Interna-
tional Union, AFL-CIO and CLC (International Union) (collectively,
Unions). She alleged breach of contract and constructive fraud
against the City, breach of duty of fair representation against the
Local Union, and constructive fraud against the International
Union. On defendants' motions, the circuit court dismissed all
four counts with prejudice. Plaintiff appeals. We affirm in part,
reverse in part and remand with directions.
In count I against the City (styled breach of contract),
plaintiff alleged that (1) on September 19, 1995, she was dis-
charged from her employment by the City for alleged failure to stop
her bus at a stop sign; (2) on that date, she was a member of the
Local Union and was a beneficial party to a collective-bargaining
agreement (Agreement) between the City and the Local Union; (3)
certain provisions of the Agreement stated that the City may
suspend or discharge an employee for "just cause" and that the
authority of the City to discipline or discharge shall not be
arbitrary, capricious, or discriminatory in nature; (4) the City
disregarded statements from plaintiff, another bus driver, and
three bus passengers stating that plaintiff did stop her bus at the
stop sign; (5) the City breached the Agreement by discharging
plaintiff without just cause and by discharging her in an arbi-
trary, capricious, or discriminatory manner, including applying
rules and regulations it promulgated pursuant to the Agreement in
an arbitrary and capricious manner; (6) plaintiff exhausted her
administrative remedies through the third step of the grievance
procedure of the Agreement; and (7) the City denied the third-step
grievance on December 1, 1995, and the Local Union refused to
arbitrate the grievance beyond that point. Plaintiff asked for
back wages and reinstatement with full benefits and seniority.
Count II of the complaint against the City (styled
constructive fraud) alleged that (1) plaintiff's discharge by the
City constituted a constructive fraud in one or more of the
following ways: (a) the original "fact" hearing held by the City
was conducted by the City's personnel director, who had an inherent
conflict of interest; (b) plaintiff was only given three days
between notice of hearing and the hearing date to obtain witnesses
and information; (c) the City failed to provide a procedure to
obtain the testimony of witnesses on plaintiff's behalf; (d) the
City's personnel director made no findings as to why plaintiff's
testimony was not credible; (e) the decision to discharge plaintiff
was made on the recommendation of the personnel director, not based
upon the evidence presented at the hearing; (f) plaintiff was
discharged without consideration of her employment record, as
required by the Danville Mass Transit Company's rules and regula-
tions; (g) the City failed to consider and refused to record
eyewitness testimony presented at the second-stage grievance
hearing; (h) the City discharged plaintiff without just cause; and
(i) the City applied inherently inconsistent rules in discharging
plaintiff; and (2) plaintiff exhausted her administrative remedies
through the third-step grievance and the Local Union refused to
arbitrate the grievance beyond that point. In addition to back
wages and reinstatement, plaintiff asked for punitive damages.
Count III of the complaint was against the Local Union
(styled breach of duty of fair representation) and alleged that (1)
plaintiff pursued the first three steps of the grievance procedure
with her personal attorney in cooperation with the Local Union; (2)
the Local Union voted in a sealed vote on September 24, 1995, on
whether to arbitrate plaintiff's grievance; (3) the Local Union
breached its duty of fair representation in one or more of the
following ways: (a) without consulting plaintiff or her attorney,
the Local Union president entered into a collusive "understanding"
with the City's mayor that plaintiff be reinstated without payment
of back pay or benefits; (b) the Local Union decided to ignore its
duty to represent plaintiff because she had hired an attorney; (c)
at a meeting on December 10, 1995, the Local Union voted to ignore
and destroy the September 24, 1995, sealed vote and voted to refuse
to arbitrate plaintiff's termination, despite her request that the
Local Union proceed with arbitration; and (d) the decision not to
demand arbitration was not an exercise of good-faith judgment on
the part of the Local Union, but was made because of hostility
toward plaintiff; and (4) the time period under the Agreement
within which to arbitrate plaintiff's grievance ended on December
11, 1995. Plaintiff asked for a judgment for back wages.
Count IV of the complaint against the International Union
(styled constructive fraud) alleged that (1) on information and
belief, the International Union by its duly authorized representa-
tive, Vernon Frakes, willfully conspired with and directed its
Local Union to refuse to arbitrate plaintiff's grievance due to
hostility toward plaintiff and (2) the actions of the International
Union constitute a constructive fraud. Plaintiff asked for a
judgment for back wages and punitive damages.
On June 28, 1996, the Unions filed a joint motion to
dismiss pursuant to section 2-619 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-619 (West 1994)), alleging that the claims
plaintiff asserted in her complaint against the Unions are within
the exclusive jurisdiction of the Illinois State Labor Relations
Board (Board) pursuant to the Illinois Public Labor Relations Act
(Act) (5 ILCS 315/1 et seq. (West 1994)) and the circuit court
therefore lacked subject-matter jurisdiction to hear them.
On July 9, 1996, the City filed a motion pursuant to
section 2-619 of the Code, seeking to dismiss counts I and II. The
motion alleged that (1) plaintiff had failed to exhaust her
remedies under the grievance procedure set forth in article 6 of
the Agreement and (2) the Board has exclusive jurisdiction under
the Act over collective-bargaining matters between employee
organizations and units of local government and the circuit court
therefore lacked subject-matter jurisdiction to hear plaintiff's
claims.
Article 6 of the Agreement is entitled "Grievance
Arbitration" and provides that if the parties to the Agreement are
unable to reach a settlement of the grievance using the procedures
outlined in article 5, either party may submit the grievance to
arbitration by a demand for arbitration to the other party within
six working days after denial of the grievance in the last step of
the grievance procedure. The parties to the Agreement are the City
and the Local Union.
On February 13, 1997, the circuit court granted the
City's motion to dismiss, finding that plaintiff had failed to
exhaust her administrative remedies. On the same date, the court
also entered a separate order granting the Unions' joint motion to
dismiss, ruling that exclusive jurisdiction over plaintiff's claims
against the Unions lies with the Board and the circuit court lacked
subject-matter jurisdiction over them.
On appeal, plaintiff advances three arguments: (1) the
circuit court has jurisdiction to adjudicate her causes of action
against the Unions; (2) she did in fact exhaust her contractual
remedies under the Agreement and, thus, she is entitled to pursue
her claims against the City in the circuit court; and (3) the
circuit court has jurisdiction to adjudicate her causes of action
against the City.
"A trial court should dismiss a cause of
action only if it is apparent that no set of
facts can be proven that will entitle plain-
tiff to recover. [Citation.] Motions to
dismiss admit facts well pleaded [citation],
together with all reasonable inferences which
can be drawn from those facts [citation], but
does not admit conclusions unsupported by
allegations of specific facts on which such
conclusions rest [citation], or conclusions of
law. [Citation.] A reviewing court must
determine whether the allegations of the
complaint, when interpreted in the light most
favorable to the plaintiff, are sufficient to
set forth a cause of action upon which relief
may be granted." Munizza v. City of Chicago,
222 Ill. App. 3d 50, 51-52, 583 N.E.2d 561,
563 (1991).
Plaintiff argues that the circuit court has subject-
matter jurisdiction to adjudicate her causes of action against the
Unions. She relies on the Labor Management Relations Act, 1947
(LMRA) (29 U.S.C. 141 through 187 (1994)) and federal rulings
thereunder as persuasive authority for interpretation of the Act.
She points out the similarities between the sections in the two
statutes regarding what constitutes an unfair labor practice.
Compare 29 U.S.C. 158(a),(b) (1994) (employer and labor organiza-
tion unfair labor practices, respectively), with 5 ILCS
315/10(a),(b) (West 1996) (employer labor organization unfair labor
practices, respectively). She also relies on Vaca v. Sipes, 386
U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), where the Supreme
Court held that jurisdiction of the courts and the National Labor
Relations Board (NLRB) over a cause of action for breach of the
duty of fair representation is concurrent. The Vaca holding was
reaffirmed in Breininger v. Sheet Metal Workers International Ass'n
Local Union No. 6, 493 U.S. 67, 75, 107 L. Ed. 2d 388, 401, 110 S.
Ct. 424, 430 (1989). It has been held that rulings of the NLRB and
the federal courts construing the LMRA are persuasive authority for
similar provisions in the Act. See American Federation of State,
County & Municipal Employees v. Illinois State Labor Relations
Board, 190 Ill. App. 3d 259, 264, 546 N.E.2d 687, 690-91 (1989).
Thus, according to plaintiff, logic dictates that her cause of
action for breach of the duty of fair representation should be
treated in the same manner as a similar federal cause of action.
In dismissing plaintiff's claims against the Unions, the
trial court relied on a decision of the first district, Foley v.
American Federation of State, County, & Municipal Employees,
Council 31, Local No. 2258, 199 Ill. App. 3d 6, 556 N.E.2d 581
(1990). In that case, plaintiffs were parole officers employed by
the Illinois Department of Corrections. They were also members of
the defendant union. They filed a grievance with the union over
actions of the employer, and the union processed the grievance
through the third step of the grievance procedure established by
the collective-bargaining agreement. The union refused to
arbitrate the grievance on the basis that the claim could not
prevail. Plaintiffs filed a complaint in the circuit court
alleging that the union had breached its duty of fair representa-
tion and the employer had breached the collective-bargaining
agreement. The circuit court dismissed the complaint, finding, as
to the union, that exclusive jurisdiction lay with the Board. The
appellate court affirmed. As to the claim against the union, the
court noted that section 10(b)(1) of the Act makes it an unfair
labor practice for a union to restrain or coerce public employees
in the exercise of the rights guaranteed by the Act. Thus, breach
of the duty of fair representation is an unfair labor practice that
is subject to the Act's "comprehensive scheme of remedies and
administrative procedures." Foley, 199 Ill. App. 3d at 10, 556
N.E.2d at 583.
The Foley court interpreted section 5 of the Act (5 ILCS
315/5 (West 1994)) as conferring exclusive jurisdiction on the
Board over breach of duty of fair representation claims. It also
noted that decisions of the Board are appealable directly to the
appellate court and that no provision of the Act allows employees
to file suit in the circuit court alleging a breach of the duty of
fair representation. The court also found support for its decision
in an opinion by our supreme court in Board of Education of
Community School District No. 1, Coles County v. Compton, 123 Ill.
2d 216, 526 N.E.2d 149 (1988), finding that the Illinois Education-
al Labor Relations Act (IELRA) (Ill. Rev. Stat. 1987, ch. 48, par.
1701 et seq.) divested the circuit court of jurisdiction to vacate
or enforce arbitration awards pursuant to the Uniform Arbitration
Act (Ill. Rev. Stat. 1987, ch. 10, pars. 101 through 123), despite
the absence of any express language in the statute divesting the
courts of jurisdiction. Compton noted that with concurrent
jurisdiction, there is the possibility of conflicting judgments and
forum shopping that may imperil the uniformity the IELRA seeks to
achieve. Compton, 123 Ill. 2d at 222, 526 N.E.2d at 152.
The Foley court adopted the Compton policy rationale and
noted that the Act and the IELRA were both enacted to provide a
comprehensive regulatory scheme for public-sector bargaining in
Illinois. The court also noted that the already overburdened court
system would face increased amounts of unnecessary litigation
should there be concurrent jurisdiction over breach of duty of fair
representation claims. In distinguishing the federal labor scheme
with its concurrent jurisdiction, the court noted that the primary
concern of the United States Supreme Court in Vaca was that the
general counsel of the NLRB had unreviewable discretion to refuse
to institute an unfair labor practice complaint and the federal
statute provided for no review of this decision. In contrast, the
Act sets forth explicit standards by which the Board must determine
whether to issue an unfair labor practice complaint, and a decision
by the Board's executive director not to issue a complaint is
appealable to the Board and ultimately to the appellate court on
administrative review. Although the Act was patterned after the
LMRA, it contains provisions that distinguish it from the federal
law. Foley, 199 Ill. App. 3d at 11-12, 556 N.E.2d at 584-85.
We agree with the reasoning of Foley and conclude that
plaintiff's claims against the Unions are within the exclusive
jurisdiction of the Board. Plaintiff urges that section 5 of the
Act does not contain the word "exclusive" in conferring jurisdic-
tion on the Board. However, the supreme court's Compton decision
illustrates that use of the word "exclusive" is not dispositive of
the issue. We note that Compton affirmed a decision of this court
(Board of Education of Community School District No. 1, Coles
County v. Compton, 157 Ill. App. 3d 439, 510 N.E.2d 508 (1987)),
finding that the Illinois Educational Labor Relations Board (IELRB)
had exclusive jurisdiction over claims involving arbitration
awards, despite absence of the word "exclusive."
A finding of exclusive jurisdiction in the Board is
consistent with the "'comprehensive regulatory scheme for public
sector collective bargaining in Illinois'" (Foley, 199 Ill. App. 3d
at 10-11, 556 N.E.2d at 584, quoting Chicago Board of Education v.
Chicago Teachers Union, 142 Ill. App. 3d 527, 530, 491 N.E.2d 1259,
1261 (1986)), envisioned by the General Assembly in enacting the
Act and the IELRA. Concurrent jurisdiction in the circuit courts
would allow inconsistent decisions and forum shopping, which would
undermine the goal of uniformity sought to be achieved by the Act
and IELRA. In this connection, we note that section 15.1 of the
Act (5 ILCS 315/15.1 (West 1994)) directs the Board, in final
decisions in representation and unfair labor practice cases, to
consider final decisions of the IELRB.
Plaintiff attempts to circumvent this by asserting that
she is alleging a breach of the common law duty of fair representa-
tion, whereas, in Foley, the plaintiffs were alleging a breach of
the duty of fair representation under the Act. However, there
simply is no common law duty of fair representation. The duty of
fair representation stems from a union's statutory role as
exclusive bargaining agent. Jones v. Illinois Educational Labor
Relations Board, 272 Ill. App. 3d 612, 619, 650 N.E.2d 1092, 1097
(1995). When the legislature enacts a comprehensive statutory
scheme, creating rights and duties that have no counterpart in
common law, the legislature may limit or preclude the jurisdiction
of the circuit courts. Board of Education of Warren Township High
School District 121 v. Warren Township High School Federation of
Teachers, Local 504, 128 Ill. 2d 155, 165, 538 N.E.2d 524, 529
(1989).
Plaintiff argues that the International Union is not
subject to the Act because it had no duty to represent her under
the Agreement. She notes that the Agreement describes the Local
Union as the exclusive bargaining agent for all employees. Section
3(i) of the Act (5 ILCS 315/3(i) (West 1994)) defines "labor
organization" as:
"[A]ny organization in which public employees
participate and that exists for the purpose,
in whole or in part, of dealing with a public
employer concerning wages, hours, and other
terms and conditions of employment, including
the settlement of grievances."
Section 10(b)(1) of the Act (5 ILCS 315/10(b)(1) (West 1994))
provides that it is an unfair labor practice for a labor organiza-
tion to restrain or coerce public employees in the exercise of
rights guaranteed by the Act. This language applies to any labor
organization, not simply to an organization certified as the
exclusive bargaining representative. One of the rights granted to
public employees by the Act is to be fairly represented by the
exclusive bargaining agent. Plaintiff alleged in her complaint
that the International Union "willfully conspired with and directed
its Local Union 214D to refuse to arbitrate the grievance of the
Plaintiff herein due to hos[]tility toward the Plaintiff." This is
essentially an allegation that the International Union interfered
with plaintiff's statutory right to be represented fairly by the
Local Union and that this conduct caused the Local Union to breach
its duty of fair representation. Such a claim clearly alleges an
unfair labor practice on the part of the International Union under
section 10(b)(1) of the Act. Thus, exclusive jurisdiction to hear
this claim lies with the Board.
Plaintiff next argues that counts I and II of her
complaint show as a matter of law that she exhausted the contractu-
al remedies available to her under the Agreement, thus allowing her
to maintain those causes of action against the City. Plaintiff
points out that the parties to the Agreement are the City and the
Local Union and it is the Local Union that has the sole authority
to pursue arbitration. She argues that the causes of action
against an employer for breach of contract and a union for breach
of the duty of fair representation are intertwined. According to
plaintiff, she is entitled to bring an action against her employer
for breach of contract, even though it was the Local Union that,
allegedly, wrongfully refused to arbitrate.
The Agreement in this case provided a three-step
grievance procedure. First, the employee must submit a written
grievance to her supervisor. Second, if the grievance is to be
processed further, the employee must inform her union steward, who
must then put the grievance in writing and submit it to the
employee's department head or other person designated by the City.
Third, after the department head responds to the grievance, the
Local Union may appeal that decision to the mayor. If this does
not resolve the grievance, the Local Union or City may then demand
arbitration.
Under section 8 of the Act (5 ILCS 315/8 (West 1994)),
the grievance and arbitration provisions of the Agreement are
subject to the Uniform Arbitration Act (710 ILCS 5/1 through 23
(West 1994)) and, once grievance procedures mandated by a collec-
tive-bargaining agreement are exhausted, suit may be brought in the
circuit court by the parties to the collective-bargaining agreement
for its violation. 5 ILCS 315/16 (West 1994). It is well settled
that an employee subject to a collective-bargaining agreement must
at least attempt to exhaust contractual remedies before resorting
to a judicial remedy. To state a complaint, plaintiff must allege
on the face of her pleading that grievance procedures were followed
and exhausted. Quist v. Board of Trustees of Community College
District No. 525, 258 Ill. App. 3d 814, 818, 629 N.E.2d 807, 810
(1994).
The trial court found that plaintiff had failed to
exhaust her contractual remedies. However, we conclude that
plaintiff adequately alleged in count I of her complaint that she
exhausted her contractual remedies. She alleged that her grievance
was processed through the third step and, when the City denied the
grievance at that point, the Local Union refused to submit the
grievance to arbitration. Since the Agreement allowed only the
City and the Local Union to demand arbitration, plaintiff could
take the grievance no further.
Nonetheless, plaintiff was not entitled to pursue her
claim of breach of contract against the City in circuit court. In
reviewing a trial court's judgment, a reviewing court is not
limited to the reasoning employed by the trial court and may affirm
the judgment on any basis warranted by the record. Schaumburg
State Bank v. Bank of Wheaton, 197 Ill. App. 3d 713, 719, 555
N.E.2d 48, 51 (1990).
Plaintiff argues that the circuit court has jurisdiction
over her contract claim. The City included this issue in its
motion to dismiss before the trial court but has not argued it on
appeal. Were we to agree with plaintiff that the circuit court
has jurisdiction over her breach of contract claim against the
City, employees could thwart the purpose of the Act to vest
jurisdiction in the Board over matters involving collective-
bargaining agreements. Plaintiff alleges in count I that the City
wrongfully discharged her and arbitrarily applied to her certain
rules and regulations promulgated pursuant to the Agreement.
These allegations cannot be addressed by the circuit court without
interpreting the Agreement and viewing the City's alleged actions
in light of this interpretation. These are matters that fall
within the expertise of the Board.
We find support for this view in a decision of our
supreme court, Gonzalez v. Prestress Engineering Corp., 115 Ill. 2d
1, 503 N.E.2d 308 (1986). There, plaintiffs were terminated by
their employer after filing workers' compensation claims. When
plaintiffs sued, the employer raised the affirmative defense that
plaintiffs had failed to exhaust the grievance procedure estab-
lished by the collective-bargaining agreement. Plaintiffs moved to
strike the defense and the circuit court granted the motions, but
certified the question for interlocutory appeal. The appellate
court denied the employer's petition for interlocutory appeal and
the Supreme Court of Illinois granted leave to appeal. The supreme
court held that state tort claims for retaliatory discharge are not
preempted by the LMRA and plaintiffs were not required to plead
exhaustion of the grievance procedure in a collective-bargaining
agreement to state a cause of action for retaliatory discharge.
However, the court noted it had been held by the United States
Supreme Court that claims were preempted if resolution of the
particular tort claim was dependent on an interpretation of the
terms of the collective-bargaining agreement. Our supreme court
then noted that claims for retaliatory discharge are rooted instead
in the clearly mandated public policy of Illinois and exist
regardless of any interpretation of a labor contract. The court
also stated that exhaustion of grievance and arbitration procedures
in a collective-bargaining agreement was not required prior to
pursuing a tort claim for retaliatory discharge. The court based
its ruling on the fact that such a claim is not derived from the
labor contract and is grounded instead on a violation of important
public policy. Gonzalez, 115 Ill. 2d at 11-12, 503 N.E.2d at 313.
Although the instant case involves a contract cause of
action, rather than a tort cause of action, the principles stated
in Gonzalez are applicable. Unlike the claim in Gonzalez,
plaintiff's claim against the City in count I is grounded in the
Agreement and would require interpretation of its terms as applied
to plaintiff's particular situation.
We find further support for our holding in a decision by
the United States Supreme Court, Lingle v. Norge Division of Magic
Chef, Inc., 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877
(1988), albeit in a different context. There, a union employee was
discharged by her Illinois employer on the grounds that she had
filed a false workers' compensation claim. The collective-
bargaining agreement prohibited discharge without just cause. The
union filed a grievance on the employee's behalf. The employee
also filed an action in state court against the employer, alleging
retaliatory discharge. The cause was removed to federal district
court and the employer moved to dismiss on the grounds that the
action was preempted by section 301(a) of the LMRA (29 U.S.C. 185
(1994)), which provides that suits for violation of collective-
bargaining agreements between a union and an employer in an
industry affecting commerce may be brought in any federal district
court having jurisdiction of the parties. The federal district
court dismissed the case and the appeals courts affirmed, finding
that the state tort action was inextricably intertwined with the
collective-bargaining agreement's provision prohibiting discharge
without just cause and that such claims must be determined under
federal law. On further appeal, the Supreme Court noted that
section 301 of the LMRA "mandated resort to federal rules of law in
order to ensure uniform interpretation of collective-bargaining
agreements, and thus to promote the peaceable, consistent resolu-
tion of labor-management disputes." Lingle, 486 U.S. at 404, 100
L. Ed. 2d at 417, 108 S. Ct. at 1880.
The Court stated that if a state law claim depends on the
meaning of a collective-bargaining agreement, the application of
state law is preempted and federal labor law principles must be
applied. Application of state law in such cases would necessarily
lead to inconsistent results, whereas federal law is uniform
throughout the country. The court then held that resolution of the
state law claim of retaliatory discharge was not dependent upon an
interpretation of the collective-bargaining agreement, since the
factual determinations to be made as to the employee's conduct and
the employer's conduct and motives would not turn on any provision
of that agreement. Lingle, 486 U.S. at 407, 100 L. Ed. 2d at 419-
20, 108 S. Ct. at 1882.
This analysis may be applied to the instant case. A
stated purpose of the Act is to:
"regulate labor relations between public
employers and employees, including the desig-
nation of employee representatives, negotia-
tion of wages, hours and other conditions of
employment, and resolution of disputes arising
under collective[-]bargaining agreements." 5
ILCS 315/2 (West 1994).
The legislature envisioned that decisions of the Board
would be made by people with a certain level of expertise in the
field of labor-management relations. Section 5(a) of the Act (5
ILCS 315/5(a) (West 1994)) requires that the Governor appoint to
the Board:
"only persons who have had a minimum of 5
years of experience directly related to labor
and employment relations in representing
public employers, private employers or labor
organizations; or teaching labor or employment
relations; or administering executive orders
or regulations applicable to labor or employ-
ment relations."
Allowing plaintiff to pursue her contract claim against
the City in circuit court would undermine the Act's stated purpose
and frustrate the legislature's intent to provide a uniform body of
law in the field of labor-management relations to be administered
by those who have the required expertise in this area. Concurrent
jurisdiction may lead to forum shopping and inconsistent judgments
in similar factual settings. Another consideration is the fact
that circuit courts lack jurisdiction to hear claims against unions
for breach of the fair duty of representation. Pleading and
proving such claims is a prerequisite to maintaining an action
against an employer for breach of the collective-bargaining
agreement. Should we adopt plaintiff's position, circuit courts
would be faced with the awkward situation of putting an action
against an employer for breach of contract on hold while the Board
decides whether the union breached its duty to the employee of fair
representation. Undue delay in the circuit courts would certainly
result.
Thus, we hold that the circuit court lacked subject-
matter jurisdiction over plaintiff's claim of breach of contract in
count I of her complaint and exclusive jurisdiction lies with the
Board.
We now turn to count II of the complaint. Plaintiff
argues that she was not required to exhaust her contractual
remedies prior to filing a tort cause of action against the City.
We have already held that plaintiff did in fact exhaust her
contractual remedies. However, this fact does not mean that the
trial court erred in dismissing count II. As noted above, a
reviewing court is not limited to the reasoning employed by the
trial court and may affirm the judgment on any basis warranted by
the record. Schaumburg State Bank, 197 Ill. App. 3d at 719, 555
N.E.2d at 51. Plaintiff has attempted to allege a cause of action
for constructive fraud against the City.
"Constructive fraud is any act, statement, or
omission which amounts to positive fraud, or
which is construed as fraud because of its
detrimental effect upon public interests and
public or private confidences. It requires
neither actual dishonesty, nor intent to
deceive, being a breach of legal or equitable
duty which, irrespective of the moral guilt of
the wrongdoer, the law declares fraudulent
because of its tendency to deceive others. It
can be inferred from the circumstances regard-
less of any actual dishonesty of purpose."
People ex rel. Hawthorne v. Bartlow, 111 Ill.
App. 3d 513, 518, 444 N.E.2d 282, 285 (1983).
To state a claim for constructive fraud, a plaintiff must
allege facts establishing the breach of a duty arising from a
fiduciary or confidential relationship whereby the fiduciary has
profited. Where such a claim is alleged, the fiduciary is presumed
to have acted fraudulently and must prove by clear and convincing
evidence that the transaction was fair and equitable and did not
result from undue influence. Farmer City State Bank v. Guingrich,
139 Ill. App. 3d 416, 425, 487 N.E.2d 758, 764 (1985). Plaintiff
has not alleged facts establishing any of the requisites of a cause
of action for constructive fraud. Thus, count II of her complaint
was properly dismissed on this basis. However, in fairness to
plaintiff, count II should be remanded to the trial court to allow
plaintiff an opportunity to amend count II and state a claim for
constructive fraud.
Accordingly, the circuit court's judgment is affirmed as
to counts I, III and IV of the complaint. The judgment as to count
II is reversed and the cause remanded to allow plaintiff an
opportunity to amend count II to state a cause of action for
constructive fraud.
Affirmed in part, reversed in part and remanded with
directions.
KNECHT and GREEN, JJ., concur.
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