RONNIE D. COOK, Plaintiff-Appellant, v. CATERPILLAR TRACTOR CO., Defendant-Appellee.
Third District No. 79-468
Appellate Court of Illinois, Third District
June 25, 1980
Judgment affirmed, as modified, and remanded for sentencing on the modified judgment.
ALLOY, P. J., and STOUDER, J., concur.
Kenneth L. Ott and James R. Carter, both of Kenneth L. Ott & Associates, of Peoria, for appellant.
Homer W. Keller, Wayne L. Hanold, and Thomas G. Harvel, all of Westervelt, Johnson, Nicoll & Keller, and Jerome A. Kenney, all of Peoria, for appellee.
Mr. PRESIDING JUSTICE STOUDER delivered the opinion of the court:
This case involves an appeal from an order of the circuit court of Peoria County dismissing the plaintiff‘s complaint with prejudice. Although there are a number of issues raised in this case, the ultimate issue is whether the dismissal of the plaintiff‘s complaint was proper.
The record reveals that оn November 19, 1975, and again on December 19, 1975, the plaintiff, Ronnie D. Cook, injured his back while employed by the defendant Caterpillar Company. Subsequently, the plaintiff filed a workmen‘s compensation claim against Caterpillar. (
On January 18, 1977, the plaintiff reported for work. However, due to continued pain and discomfort in his neck and back, he found he was unable to work, advised his foreman in this regard, and punched out after having been on his shift less than two hours. The next day the plaintiff‘s wife notified the defendant that the plaintiff would be absent from work. On January 20, 1977, the plaintiff‘s wife delivered a disability benefit form to Caterpillar. The form was signed by the plaintiff‘s doсtor, and stated that the plaintiff‘s back condition would be aggravated by engaging in work which required lifting or bending. The plaintiff did not report to work on January 19, 20, 21 and 24. On January 24, 1977, the defendant discharged Cook. The specific reason given for the firing was plaintiff‘s violation of a company rule which provides that an employee may be
On March 2, 1977, an arbitrator of the Illinois Industrial Commission rendered a decision in which he found that the plaintiff was entitled to receive from Caterpillar $164.27 per week for an intermittent period of 16 1/7 weeks pursuant to
On April 30, 1977, the labor arbitrator rendered his decision regarding the plaintiff‘s griеvance. Limiting his decision to the narrow issue of whether the plaintiff‘s discharge had been for “just cause,” the arbitrator found that Cook had in fact provided just cause for his dismissal when he was absent from work without leave on January 19, 20, 21 and 24, and dismissed the grievance.
On January 18, 1979, the plaintiff filed the instant action against Caterpillar, alleging that Caterpillar engaged in a retaliatory discharge of the plaintiff when the plaintiff was discharged for pursuing his right to receive compensation under the Workmen‘s Compensation Act. In his two-count complaint, the plaintiff sought $250,000 in compensatory damages, and $1,000,000 in punitive damages. A motion was subsequently filed by Caterpillar to dismiss the plaintiff‘s complaint. In its motion Caterpillar contended that by resorting to and exhausting his out-of-court remedies, plaintiff was not entitled to seek redress in the courts or, alternatively, the decision reached under the out-of-court procedures was res judicata respecting any subsequent legal action. The court granted defendant‘s motion and plaintiff appeals.
The first issue raised by plaintiff is whether the fact that plaintiff exhausted his remedies pursuant to the provisions of the colleсtive bargaining agreement bars access to the court or whether it is a condition precedent to the filing of a civil suit for retaliatory discharge. Plaintiff contends he must exhaust his administrative remedies prior to bringing suit. Having failed to gain satisfaction by this method, he contends that he may subsequently file a suit for retaliatory discharge sounding in tort. This argument rests on two premises. The first premise is that the issuе of
At the heart of the premise that the issue could not have been resolved by arbitration is the assumption that the collective bargaining agreement does not provide a means of redress for retaliatory discharge. That assumption is erroneous. Section 5.1 of the collective bargaining agreement provides for the grievance procedure and defines grievances. Part b of section 5.1 states that a grievance is “[a]ny matter involving the interpretation, application or violation of any provisions of this agreement * * *.” One of those provisions is section 5.5 which states, “Employees shall be * * * dischаrged only for just cause.” The provision further discusses the procedures to be followed when there has been a discharge. It is thus clear that whether or not an employee has been discharged for just cause is covered by the collective bargaining agreement.
If the employee was not discharged for just cause, then he was wrongfully discharged. It is obvious that an investigation intо whether or not there was a wrongful discharge would examine the possibility that the employee was the victim of a retaliatory discharge. Therefore, the arbitrator clearly has the power to decide the matter if one side should bring it up.
It is true that the agreement does not specifically enumerate retaliatory discharge as a grievance. However, not every conceivable problem can be covered by a collective bargaining agreement. Such an agreement is an effort to erect a system of industrial self-government. (United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347.) Because of the breadth of matters covered by such an agreement, as well as the need for a fairly concise and readable instrument, the agreement cannot specifically enumerate a provision to cover every situation. Therefore, the provisions regarding the employer‘s right to discharge for just cause and the employee‘s right to continuance of his employment in the absence of such just cause are couched in general and ambiguous terms. (Payne v. Pullman Co. (1957), 13 Ill. App. 2d 105, 141 N.E.2d 83.) These terms “are given practical implementation by the establishment of a complеte system of arbitrament * * *” (Payne, 13 Ill. App. 2d 105, 118, 141 N.E.2d 83, 89.) In view of the above, it is clear that simply because retaliatory discharge is not specifically mentioned in the collective bargaining agreement, it is not beyond the scope of the agreement. In fact, the discharge provisions of the agreement were intentionally left in general terms so as to allow enough flexibility to permit various considеrations such as retaliatory discharge to be weighed when an arbitrator tries to determine whether or not there was just cause for a discharge. It is an inescapable conclusion that the concept of retaliatory discharge is
The second рremise relied on by plaintiff is that an action for retaliatory discharge sounds in tort, not contract. In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, the Illinois Supreme Court stated that where there has been a retaliatory discharge of an employee terminable at will, the discharged employee may bring an action in tort. The reasoning behind the court‘s decision is that an employee terminable at will has no recourse against his employer if the employer decides to discharge the employee for filing a workmen‘s compensation claim. In the absence of the ability to recover in tort, an employee terminable at will would be forced to choose between continued employment and the workmen‘s compensation legally due him. This would have seriously undermined the Workmеn‘s Compensation Act, and so the court permitted employees terminable at will to sue in tort for retaliatory discharge.
The issue in this case is whether Kelsay is applicable to a situation where an employee is not terminable at will, but instead has recourse against an employer under a collective bargaining agreement permitting discharge only for just cause and allowing for arbitration to guarantee the parties’ rights. We believe that it is not. The policy considerations in Kelsay are not present here. In the instant case the employee is protected. As shown above, the discharge provisions of the collective bargaining agreement serve to protect the employee from retaliatory discharge. Thus, the employee is free to apply for workmen‘s compensation without worrying that he will have to sacrifice his job to gain those benefits.
In addition, there is another compelling reason not to extend the tort of retaliatory discharge. To permit an employee to circumvent procedures mutually agreed upon for handling grievances by filing suit in the first instance would undermine the collective bargaining agreement. Grievance procedures, including arbitration, were set up to prevent industrial strife. (See United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347.) To permit these procedures to be circumvented in a situation where the employee is protected by the procedures is to invite strife unnecessarily. The employee has a remedy in contract, and to expand the tort of retaliatory discharge to include the instant situatiоn is not only unnecessary, but counterproductive as well. Therefore, we believe the employee must exhaust all the remedies available to him before filing suit which, of course, sounds in contract. See Payne v. Pullman.
In the instant case, plaintiff has failed to raise the issue of retaliatory discharge as an issue in the grievance procedure. Therefore, he has failed to exhaust his remedies with regard to this issue. This failure precludes his
The judgment of the circuit court of Peoria County is affirmed.
Affirmed.
STENGEL, J., concurs.
Mr. JUSTICE BARRY, dissenting:
In affirming the circuit court‘s dismissal of the plaintiff‘s complaint, the majority holds that the plaintiff Cook has failed to exhaust all out-of-court remedies available to him and is consequently рrecluded from maintaining a cause of action in tort against Caterpillar. I strongly disagree with both the analysis and the conclusion of the majority, and for this reason respectfully dissent.
Exhaustion of out-of-court remedies by a discharged employee is not a necessary condition precedent to the filing of a cause of action in tort against an employer for retаliatory discharge. Exhaustion of the remedies provided in a collective-bargaining agreement is a logical and sensible prerequisite to the maintenance of a cause of action when that cause is based upon a violation of the terms of the agreement itself. Therefore, “[i]t is generally held that an action for wrongful discharge may not be maintained where the right of action is derived from a collective bargaining agreement, unless the plaintiff has first exhausted the grievance procedures established by such agreement.” (Annot., 72 A.L.R.2d 1439, 1441 (1960).) However, in his complaint the plaintiff is not alleging that the discharge was wrongful in the sense that the terms of the collective bargaining agreement were violated. (Compare Anson v. Hiram Walker & Sons (7th Cir. 1955), 222 F.2d 100; Payne v. Pullman Co. (1957), 13 Ill. App. 2d 105, 141 N.E.2d 83.) Rather, the plaintiff is seeking damages for his retaliatory discharge based upon his pursuing a workmen‘s compensation claim. The plaintiff‘s cause of action sounds not in contract, but in tort. It is based not upon violation of the terms of the collective bargaining agreement, but upon a violation of the public policy of the State of Illinois to compensate employees for work-related injury. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) The plaintiff‘s cause of action exists independent of the collective bargaining agreement. The right of the plaintiff to maintain a cause of action in tort for retaliatory discharge should not, therefore, be dependent upon the exhaustion of remedies provided in a collective bargaining agreement which is not at the core of the controversy.
In addition, contrary to the conclusion of the majority, a grievanсe procedure such as the one provided in the collective bargaining
“Grievance Procedure
(5.1) A grievance is defined to be any difference which may arise between the parties, or between the Company and an employee covered by this Agreement as to:
a. Any matter relating to wages (except general wage adjustments) and including but not limited to merit increases, incorrect classification within a given occupation, or incorrect classification as to occupation, hours of work or working conditions, nоt covered by this Agreement; and
b. Any matter involving the interpretation, application or violation of any provisions of this Agreement, appended letters of agreement or appropriate local agreement.”
The plaintiff‘s cause of action is not, by definition, a grievance under the collective bargaining agreement. It does not involve wages, nor doеs it even broadly speaking involve the “interpretation, application, or violation of any provisions of [the collective bargaining] Agreement, * * *.” What it does involve is an examination into the employer‘s motivation for the discharge of an employee. To compel an employee to exhaust all of the grievance procedures provided by a collective bargaining agreement when those procedures cannot possibly afford him a remedy is to subject the employee to engage in a truly futile act. The only forum in which the employee‘s claim that he was the subject of a retaliatory discharge violative of public policy can be heard is a court of law. A discharged employee alleging retaliаtory discharge need not exhaust out-of-court grievance procedures provided by a contract or collective bargaining agreement, which he must do to maintain an action for wrongful discharge based upon a contract theory, in order to maintain a cause of action against the employer in tort.
Even if I were to agree with the majority that exhaustion оf all out-of-court remedies was a condition precedent to the maintenance of a cause of action for retaliatory discharge, I would be constrained to reverse the order of the circuit court dismissing the plaintiff‘s complaint because all available out-of-court remedies were in fact exhausted by the plaintiff. The majority finds that the plaintiff has failеd to exhaust all of his nonlegal remedies because he failed to raise the issue of retaliatory discharge during the grievance procedure. In reaching such a conclusion, my colleagues assume that the question of retaliatory discharge could have been presented before the labor arbitrator. Such an assumption is manifestly erroneous.
In Kelsay, the Illinois Supreme Court provided a remedy in tort for all employees who are subjected tо a retaliatory discharge. The retaliatory discharge in that case took the form of a firing in response to the filing of a workmen‘s compensation claim. The fact that such conduct is highly reprehensible and repugnant to the public policy of this State is reflected in the prospective availability of punitive damages to discharged plaintiffs. In the case at bar, thе plaintiff alleges in his complaint that he was the victim of such a retaliatory discharge. Instead of providing an opportunity for the plaintiff to prove these allegations in open court, however, the majority today constructs a highly tenuous barrier to the circuit court by erroneously asserting that the plaintiff‘s claim sounds in contract and could have been dealt with in the grievance procedure provided in the collective bargaining agreement. Such a conclusion is fallacious. The result reached in this case and in Palmateer v. International Harvester (1980), 85 Ill. App. 3d 50, ___ N.E.2d ___, reflects a conservatism in matters of employer-employee relations which I find disturbing, and assures to employers that the tort of retaliatory discharge, although recognized by our supreme court, is virtually nonexistent in the Third District.