McMann v. Pucinski

• Decision Date: 26 July 1991
• Docket Number: No. 1-90-1421,AFL-CI,AFL-CIO,I,1-90-1421
• Citation: 161 Ill.Dec. 22,218 Ill.App.3d 101,578 N.E.2d 149
• Parties: , 161 Ill.Dec. 22 Michael H. McMANN, George Miller, Irene Ottenfeld, et al., Plaintiffs-Appellants, v. Aurelia PUCINSKI, Clerk of the Circuit Court of Cook County; and County of Cook, Defendants-Appellees (American Federation of State, County, and Municipal Employees, , and Illinois State Federation of Laborntervenors). First District, Fifth Division
• Court: United States Appellate Court of Illinois

Page 149

578 N.E.2d 149

218 Ill.App.3d 101, 161 Ill.Dec. 22

Michael H. McMANN, George Miller, Irene Ottenfeld, et al., Plaintiffs-Appellants, v. Aurelia PUCINSKI, Clerk of the Circuit Court of Cook County;

and County of Cook, Defendants-Appellees (American

Federation of State, County, and Municipal Employees,

AFL-CIO, and Illinois State Federation of Labor AFL-CIO, Intervenors).

No. 1-90-1421.

Appellate Court of Illinois,

First District, Fifth Division.

July 26, 1991.

Richard J. Reimer, Chicago, for plaintiffs-appellants.

Jack O'Malley, State's Atty. of Cook County, Chicago (Joan S. Cherry, Deputy State's Atty., Chief Civil Actions Bureau, Karen J. Dimond, Supervisor, Labor & Employment Div., LaVerne Rolle Saunders, Asst. State's Atty., of counsel), for defendants-appellees.

Joel A. D'Alba, Anne Wells Clark, Asher, Gittler, Greenfield, Cohen & D'Alba, Ltd., Chicago, for intervenor, Illinois State Federation of Labor, AFL-CIO.

Thomas J. Edstrom, AFSCME, AFL-CIO, Chicago, for intervenor.

Justice MURRAY delivered the opinion of the court:

Plaintiffs appeal from the denial of their request for preliminary injunction and from the dismissal of their complaint for declaratory judgment and injunctive relief. The undisputed facts are as follows:

In June 1988, a collective bargaining agreement was entered into between the Cook County Clerk's office and the American Federation of State, County and Municipal Employees (AFSCME or Union), effective for the period of December 1, 1987, through November 30, 1990. This agreement provided, among other things, that the AFSCME local union would be entitled to a "fair share" of the costs of collective bargaining from nonunion employees "upon satisfactory demonstration to the County that the Union has more than 50% of the eligible employees in the bargaining unit signed up as dues paying members."

In August 1988, AFSCME Local 3368 filed a grievance against Aurelia Pucinski, Clerk of the Circuit Court of Cook County (Pucinski or Clerk), asserting that the "fair share provision" (article I, section 4 of the collective bargaining agreement), should have been implemented as of June 1988. The Clerk disputed the application of the fair share provision, contending that the Union had not demonstrated that the requisite number of employees had signed up as dues paying members of the Union to trigger the provision's implementation.

In November 1989, the dispute went to arbitration as provided by the collective bargaining agreement. The arbitrator found that the requisite union membership had been sufficiently demonstrated and that the fair share provision should have been implemented effective June 1988.

In a letter dated March 30, 1990, the nonunion employees of the Clerk's office received notice from the Union that a "fair share" amount would be deducted from their paychecks beginning May 1, 1990. A letter from the Clerk dated April 16, 1990, confirmed that a "fair share" wage deduction would begin May 1, 1990, and also informed employees that "[q]uestions about the challenges to the 'fair share' deduction, or the amount itself, should be directed to the Officer of the Day ..." On April 25, 1990, however, Pucinski filed a complaint in the circuit court to vacate the arbitrator's decision and to stay implementation of the dues deduction provision. Pucinski v. American Federation of State, County and Municipal Employees, 90-CH-4016.

On April 30, 1990, 670 nonunion employees of the Clerk of the Circuit Court of Cook County (plaintiffs herein), filed a complaint for declaratory judgment and injunctive relief against their employer, Pucinski, as the Clerk of the Circuit Court of Cook County. Plaintiffs asked the court to temporarily enjoin Pucinski from deducting a fair share amount from their paychecks until it determined whether it was proper for Pucinski to deduct the fair share amount and, upon a ruling in their favor, to permanently enjoin Pucinski from making the deductions. In their complaint, plaintiffs alleged that the deduction of a fair share amount from their paychecks would be a violation of the Illinois Wage Payment and Collection Act (Ill.Rev.Stat.1988, ch. 48, par. 39m-1, et seq.), the Illinois Constitution (art. I, sec. 2), as well as the collective bargaining agreement between the Clerk and AFSCME Local 3368, because the Union never attained, and still lacked, the greater than 50% membership which was a prerequisite to the "fair share" deduction.

Plaintiffs moved to consolidate their cause of action against Pucinski with the action brought by Pucinski against AFSCME (90-CH-4016) and this motion was granted on April 30, 1990, by Judge Shields. On the same date Pucinski's emergency motion to stay the arbitrator's award was denied by Judge Curry. Despite the court's denial of Pucinski's motion for a stay, plaintiffs filed a separate motion for preliminary injunction on May 1, 1990, again asking the court to enjoin the Clerk from making the deductions from their paychecks pending the determination on their complaint.

Also on May 1, 1990, both AFSCME and the Illinois State Federation of Labor and Congress of Industrial Organizations (State Federation) filed motions to intervene in the plaintiffs' action and on May 7, 1990, prior to a ruling on their motion to intervene, the State Federation also filed a motion to dismiss plaintiffs' complaint, pursuant to section 2-615 of the Code of Civil Procedure. Ill.Rev.1990, ch. 110, par. 2-615.

On May 9, 1990, both AFSCME and the State Federation were allowed to intervene and a hearing was held on plaintiffs' motion for preliminary injunction. Not only was plaintiffs' motion for injunctive relief denied, but the trial court granted the State Federation's motion to dismiss the complaint. Plaintiffs did not object to the entry of the order, nor did plaintiffs' file any motions with the trial court subsequent to the dismissal of their complaint. Instead, plaintiffs filed the present appeal in which they contend that jurisdiction over the matter is conferred upon this court by virtue of Supreme Court Rule 303 (107 Ill.2d R. 303) and allege the following errors:

1. That the trial court improperly dismissed plaintiffs' complaint without notice and without an opportunity to be heard.

2. That the trial court erred by denying plaintiffs' request for a preliminary injunction.

3. That the trial court erred by allowing the State Federation to intervene.

Plaintiffs' position on appeal is that AFSCME had a continuing obligation to maintain a 50% membership quota as a condition precedent to their ability to obtain the fair share amount from nonmember employees. While acknowledging that arbitration on the issue took place, plaintiffs maintain that their lack of participation in the arbitration makes the arbitrator's decision nonbinding on them and, further, that the arbitrator's decision as to the number of Union members as of June 1988 is irrelevant, since the right to "fair share" is contingent upon the continued maintenance of more than 50% membership.

Before addressing the merits of the issues raised, we must first address the issue of this court's jurisdiction over the appeal. We note that in plaintiffs' statement of jurisdiction in their original brief on appeal they indicated that jurisdiction was based upon Illinois Supreme Court Rule 304(a) and 307(a)(1). Plaintiffs apparently cited to Rule 304(a) because their claim had been consolidated with Pucinski's complaint against AFSCME and so they believed that the dismissal of their complaint did not dispose of the entire matter before the court.

Supreme Court Rule 304(a) states that, where multiple parties or multiple claims for relief are involved in an action, an appeal may be had from a final judgment as to one or more of the parties or claims even if the entire proceeding is not disposed of, if the trial court makes an express written finding that "there is no just reason for delaying enforcement or appeal" of the order appealed from. (Ill.Rev.Stat.1990, ch. 110A, par. 304(a).) In the present case no such findings were made.

The order appealed from stated, in pertinent part:

"3. Plaintiff's Motion for Preliminary Injunction is denied.

4. Intervenor State Fed. Motion to Dismiss the Complaint is granted.

5. There is no just cause to delay the entry of this order."

Without addressing the ramification of the consolidation of the two cases, and perhaps recognizing that the "magic language" of Rule 304(a) was lacking, the briefs filed in this appeal by defendant Pucinski and the intervenors, AFSCME and the State Federation, challenged plaintiffs' statement of jurisdiction, arguing that the appeal was not governed by Rule 304(a), but rather Rule 303. It was their position that the trial court's dismissal of plaintiffs' complaint was a final order which disposed of the entire action.

In their reply brief, plaintiffs amended their statement of jurisdiction, averring that their complaint had only been consolidated for hearing with Pucinski's complaint and, thus, the two complaints were only to be treated as companion cases. Therefore, plaintiffs now contended, in agreement with defendant and intervenors, that the order appealed from was a final order which terminated all issues as to all parties and that jurisdiction was proper pursuant to Supreme Court Rule 303.

We agree that the consolidation of the two complaints so that they could be heard as companion cases did not cause them to be joined as a single cause of action for the purposes of appeal. However, this decision does not eliminate our concern as to our jurisdiction over the appeal. The question that is raised in this court's mind as to the finality of the order stems from the fact that the trial court merely granted the State Federation's motion to dismiss, but did not specify whether the dismissal of the complaint was "with prejudice" or "without prejudice."

Generally, a dismissal...