dissenting:
In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181, this court found that an “employer’s otherwise absolute power to terminate an employee at will should [not] prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen’s Compensation Act.” In recognizing the tort of retaliatory discharge, the court created what was to be a narrow exception to the general rule that “ ‘at-will’ employment is terminable at any time for any or no cause.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128.) The court found this necessary to insure that at-will employees would be able to freely exercise their rights under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) without the risk of a retaliatory discharge by an employer against whom the employee had no recourse.
All of the plaintiffs in the consolidated cases here under review were covered by collective-bargaining agreements containing grievance procedures for the determination of whether a discharge from employment was for just cause. Nevertheless, none of the plaintiffs utilized those procedures when pursuing their wrongful-discharge claims. All initially filed civil tort claims for retaliatory discharge against their employers. The majority opinion holds that an employee covered by a collective-bargaining agreement may bring “an action in tort, independent of any contract remedy.” (105 Ill. 2d at 149.) In so doing, the court has turned the narrow exception of Kelsay into a general rule, applicable not only to at-will employees but also employees covered by a collective-bargaining agreement barring discharge of employees other than for just cause. As such, any employee, even if discharged for just cause, may now bring a civil action, sounding in tort, against his employer regardless of the fact that he voluntarily agreed to be bound by a collective-bargaining agreement providing procedures for handling the grievances of discharged employees. Further, under the facts of the instant case, the employee may file his civil action without first exhausting, or even initiating, his contractual remedies pursuant to the grievance procedures set forth in the collective-bargaining agreement.
By extending the tort of retaliatory discharge in such a sweeping manner, today’s opinion completely overlooks the specific policy consideration the court was confronted with when it recognized the tort of retaliatory discharge in Kelsay. In making the tort available to the at-will employee, the court, in Kelsay, provided a viable means for such employees to seek compensation under the Act without the threat that, in so doing, they would be sacrificing their job. The employee covered by a collective-bargaining agreement, requiring that just cause be shown in order to discharge a covered employee, is not faced with the same dilemma. As the appellate court noted in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 405-06, “the concept of retaliatory discharge is subsumed within the just-cause provision and is within the power of the arbitrator to consider when determining if a discharge is for just cause.” Clearly, a finding that an employee has been discharged in retaliation for claiming rights guaranteed under the Act would rule out a finding of a discharge for just cause. Thus, an employee covered by such an agreement may apply for benefits under the Act knowing that a discharge in retaliation for exercising such statutory rights could be vindicated by following the arbitration procedures provided for in the collective-bargaining agreement.
The majority states that allowing union employees the benefit of the tort of retaliatory discharge will not have “any perceptible effect on the use of arbitration.” (105 Ill. 2d at 151.) I cannot agree. As the appellate court in Cook correctly observed, “[t]o 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.” 85 Ill. App. 3d 402, 406.
In Republic Steel Corp. v. Maddox (1965), 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 614, the Supreme Court reached the same conclusion when considering a situation wherein an employee covered by a collective-bargaining agreement brought a civil action against his employer for severance pay, without pursuing the grievance procedures outlined in his collective-bargaining agreement. In finding that the employee was barred from suing his employer for severance pay because of his failure to follow the grievance procedures, the court stated:
“A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. In addition to cutting across the interests already mentioned, it would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation ‘would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’ [Citation.]” 379 U.S. 650, 653, 13 L. Ed. 2d 580, 583-84, 85 S. Ct. 614, 616-17.
As the majority correctly observes, the Kelsay decision is significant in recognizing the importance of punitive damages as a deterrent to the offending employer. While I agree that an employer who unjustly discharges a union employee should not be immunized from punitive damages, I cannot agree that the expectations created by the collective-bargaining agreement should be entirely overlooked by allowing the union employee to completely circumvent the mutually agreed upon grievance procedures. Requiring union members to exhaust their contract remedies is part of the trade-off such employees accept in exchange for the many rights that they benefit from — rights not enjoyed by the employee at will. As such, union employees alleging retaliatory discharge should only be allowed to pursue a civil action in very limited situations. Specifically, the discharged union employee should be allowed to pursue the civil tort action, as recognized in Kelsay, when he has followed the appropriate grievance procedures and the arbitrator has made a finding of retaliatory motivation. On the other hand, if the arbitrator finds that the employee has been discharged for just cause, the employee should be precluded from pursuing a civil action, absent the existence of extraordinary circumstances such as collusion between the union and the employer. (See Vaca v. Sipes (1967), 386 U.S. 171, 185, 17 L. Ed. 842, 855, 87 S. Ct. 903, 914.) However, bare allegations of collusion, without alleging facts to support such conclusion, are not sufficient to transform an otherwise barred claim into an allowable civil action.
Plaintiff Midgett’s claims of collusion were not included in his complaint. In its motion to dismiss Midgett’s complaint, the defendant argued that the complaint failed to state a cause of action because Midgett did not pursue the administrative remedies he was bound to follow under the terms of the collective-bargaining agreement. In affidavits filed by Midgett, in support of his opposition to the motion to dismiss, he first alleged collusion and fraudulent misrepresentations by and between the union and the defendant employer. As such, he maintained that he was denied the opportunity to pursue his claim of retaliatory discharge through grievance procedures. These allegations, however, are merely conclusory statements, without supporting facts. Therefore, I find Midgett’s claim of collusion insufficient to entitle him to institute a civil tort action against his employer.
For the reasons stated above, I respectfully dissent from the majority opinion.
RYAN, C.J., and UNDERWOOD, J., join in this dissent.