Zander v. Carlson

2020 IL 125691

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 125691)

RUSSELL ZANDER, Appellant, v. ROY CARLSON et al., Appellees.

Opinion filed November 19, 2020.

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Anne M. Burke and Justices Kilbride, Garman, Theis, Neville,

and Michael J. Burke concurred in the judgment and opinion.

OPINION

¶1 The issue in this case is whether a municipal police officer who elected to

challenge his termination through the arbitration process set forth in the collective

bargaining agreement between his union and his employer may bring an action for

damages in circuit court against the union and the union lawyer assigned to assist

him when the arbitration proved unsuccessful and he was not reinstated. The circuit

court concluded that he could not and dismissed his cause of action with prejudice.

As grounds for its decision, the court adhered to principles articulated by the United

States Supreme Court in Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962),

and held that the union attorney was immune from personal liability where, as here,

his actions were taken on behalf of a union as part of the collective bargaining

process. With regard to the police officer’s dispute with the union itself, the court

concluded that it could not be heard in circuit court but rather had to be brought

before the Illinois Labor Relations Board, which has exclusive jurisdiction over

claims that a union has violated its duty to fairly represent its members. The

appellate court affirmed. 2019 IL App (1st) 181868. For the reasons that follow, we

affirm the judgment of the appellate court.

¶2 BACKGROUND

¶3 The circuit court dismissed the terminated police officer’s cause of action based

on a combined motion to dismiss pursuant to section 2-619.1 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-619.1 (West 2018)). For purposes of our review,

we therefore accept as true all well-pleaded facts in the officer’s complaint.

Cochran v. Securitas Security Services USA, Inc., 2017 IL 121200, ¶ 3.

¶4 According to the complaint, plaintiff, Russell Zander, was employed by the

Village of Fox Lake as a patrol officer. In December 2014, the Village’s police

chief placed him on administrative leave based on allegations of misconduct arising

from multiple job-related incidents. The chief subsequently filed formal

disciplinary charges against him and recommended that he be terminated.

¶5 At all relevant times Zander was a member of the Illinois Fraternal Order of

Police Labor Council (FOP). The FOP is a labor union organized pursuant to the

Illinois Public Labor Relations Act (Act) (5 ILCS 315/1 et seq. (West 2018)). It

represents thousands of public safety and criminal justice employees with collective

bargaining rights under the Act, and it represented Zander pursuant to a collective

bargaining agreement it had with the Village.

¶6 In response to the disciplinary charges filed against him, Zander contacted the

FOP for assistance. The FOP, in turn, initially assigned an attorney named Mahoney

to handle the matter. After some preliminary proceedings, the FOP assigned Roy

Carlson, one of its staff attorneys, to take over from Mahoney. Carlson was an

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employee of the FOP, and the choice of Carlson to assist Zander was solely the

FOP’s. Zander had no input into the decision, had no retainer agreement with

Carlson, and was not charged for Carlson’s services. The FOP paid Carlson from

dues collected from its members, including Zander.

¶7 Under the Illinois Municipal Code (65 ILCS 5/1-1-1 et seq. (West 2018)),

police officers such as Zander who face removal or discharge are entitled to a

hearing before the local board of fire and police commissioners unless a collective

bargaining agreement between the municipality and the officer’s union provides for

arbitration of such disputes. Id. § 10-2.1-17. The collective bargaining agreement

between the Village and the FOP in this case did contain an arbitration provision,

but that provision gave officers the option of pursuing either avenue of recourse,

police board hearing or use of the agreement’s grievance-arbitration procedure, an

option Illinois law permits. Id.

¶8 On Carlson’s advice, Zander elected to proceed via arbitration. After a two-day

hearing, the arbitrator upheld the decision to terminate Zander’s employment and

refused to reinstate him. Unhappy with this outcome, Zander sued Carlson and the

FOP for damages in circuit court.

¶9 Zander’s complaint was in two counts. Count I, directed against both Carlson

and the FOP, sought recovery for legal malpractice. It alleged that, in their

representation of Zander, Carlson and the FOP were “negligent and failed to

exercise a reasonable degree of care and skill, and otherwise breached the standard

of care” they owed him in various ways. More specifically, Zander charged that

Carlson lacked sufficient experience to handle his case, that the FOP should not

have assigned a lawyer as inexperienced as Carlson to represent him, and that both

Carlson and the FOP failed to properly investigate the charges against him and did

not adequately prepare for or conduct the proceedings before the arbitrator. Zander

alleged that the charges against him were relatively minor but arose at a time when

the local police department was under scrutiny because of unrelated misconduct by

another officer and that he “in essence became a scapegoat, losing his employment

permanently following an arbitration that from the beginning was designed to favor

the Chief of Police and the Chief’s recommendations.” Zander alleged that, if he

had been represented by a competent attorney and been properly advised to seek a

hearing before the police commission rather than pursue arbitration, he would “in

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all probability *** have received, at worst, a much lesser disciplinary finding which

would not have resulted in the permanent loss of his employment as a police officer,

and in all likelihood the possibility of ever becoming involved in police work ever

again.”

¶ 10 Count II of Zander’s complaint was directed against the FOP alone. It asserted

that the FOP is not authorized to practice law, has no right to employ attorneys to

furnish legal services under its direction to FOP members, and cannot control

“through policy manuals and otherwise” what attorneys assigned to help FOP

members may do. It further alleged, however, that because of the business

relationship between Carlson and the FOP, and “due to the FOP’s principle [sic]

involvement in the disciplinary matters brought against Zander and its control of

Defendant Carlson,” the FOP “assumed the same fiduciary duty to Zander that

Carlson had” and “should be vicariously liable for the acts and actions of Carlson”

with regard to his representation of Zander.

¶ 11 The FOP and Carlson filed a combined motion to dismiss pursuant to section

2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2018)). As

grounds for their motion, they asserted that, under Atkinson, 370 U.S. 238, and its

progeny, union agents or employees like Carlson cannot be held personally liable

for actions undertaken in the course of their employment in furtherance of

collective bargaining rights, including grievance procedures such as the one

involved in this case. They further contended that the claims advanced by Zander

are tantamount to a charge that the FOP breached its duty of fair representation

toward Zander and that all such claims are within the exclusive jurisdiction of the

Illinois Labor Relations Board.

¶ 12 Zander responded by challenging the way in which Carlson and the FOP

characterized his cause of action. Notwithstanding the fact that it arose in the

context of a grievance procedure governed by a collective bargaining agreement,

Zander insisted that his claim emanated from the attorney-client relationship he had

with Carlson and was, at its core, a legal malpractice action as described in his

complaint and should be treated as such. Zander argued, in the alternative, that even

if he did not have an attorney-client relationship with Carlson, he could nevertheless

sue Carlson for malpractice on the theory that he was a third-party beneficiary of

the relationship between Carlson and the FOP. Finally, Zander contended that,

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because he sought to hold defendants liable based on breach of the standard of care

by Carlson rather than breach of the duty of fair representation by the FOP, the

matter did not fall within the exclusive jurisdiction of the Illinois Public Labor

Relations Board.

¶ 13 Following a hearing, the circuit court rejected Zander’s position, agreed with

the arguments advanced by Carlson and the FOP, and granted their motion to

dismiss. As defendants argued it should, the circuit court relied on the United States

Supreme Court’s decision in Atkinson, which immunizes union members and

officers against personal liability for actions taken while acting as a union

representative in the context of the collective bargaining process. Although that

case was decided under federal law, the circuit court found it appropriate to follow

that precedent in light of the close parallels between federal labor law and the

Illinois Public Labor Relations Act. The circuit court was likewise persuaded by

the FOP’s argument that Zander’s claims against it fell within the exclusive

jurisdiction of the Illinois Public Labor Relations Board.

¶ 14 Zander moved for reconsideration, arguing for the first time that Carlson should

be subject to liability to the extent of his malpractice insurance coverage. The

circuit court denied the motion. It concluded that it had applied the law correctly

and that Zander’s failure to raise the new argument prior to filing his motion to

reconsider resulted in forfeiture.

¶ 15 Zander appealed. The appellate court agreed that the rationale of Atkinson was

applicable to this dispute, that Carlson could not be held personally liable because

his actions were undertaken in his capacity as an agent of the union in furtherance

of collective bargaining rights, and that the claims advanced against the FOP by

Zander fell within the exclusive jurisdiction of the Illinois Public Labor Relations

Board. It therefore affirmed. 2019 IL App (1st) 181868.

¶ 16 Zander petitioned for leave to appeal from the appellate court’s judgment,

which we allowed. Ill. S. Ct. R. 315 (eff. Oct. 1, 2019). A group consisting of the

American Federation of State, County and Municipal Employees, Council 31; the

Illinois Education Association—NEA; and the Illinois Federation of Teachers and

Services Employees International Union, Local 73, sought and was granted leave

to file an amicus brief. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). We also allowed a

motion to file an amicus brief filed by the Illinois Public Employer Labor Relations

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Association.

¶ 17 ANALYSIS

¶ 18 Because this appeal arose in the context of an order granting a combined motion

to dismiss under section 2-619.1 of the Code of Civil Procedure, our review is

de novo. Italia Foods, Inc. v. Sun Tours, Inc., 2011 IL 110350, ¶ 9; Patrick

Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. After undertaking

our own examination of the record and the applicable law, we have reached the

same conclusion as both the circuit and appellate courts: Zander’s cause of action

was properly dismissed.

¶ 19 We first address Zander’s claim against Carlson, the FOP lawyer assigned by

the union to handle his grievance. Section 301(b) of the Labor Management

Relations (Taft-Hartley) Act, 1947 (Labor Management Relations Act) (29 U.S.C.

§ 185(b) (2018)) provides that “[a]ny money judgment against a labor organization

in a district court of the United States shall be enforceable only against the

organization as an entity and against its assets, and shall not be enforceable against

any individual member or his assets.” In enacting this law, Congress “declared its

view that only the union was to be made to respond for union wrongs, and that the

union members were not to be subject to levy.” Atkinson, 370 U.S. at 247-48.

¶ 20 An established line of cases beginning with the United States Supreme Court’s

decision in Atkinson has consistently interpreted this statute to mean that individual

union members, agents, and representatives are not subject to civil liability for

action they undertake on behalf of the union. 1 See Weiner v. Beatty, 116 P.3d 829,

831 (Nev. 2005); Arnold v. Air Midwest, Inc., 100 F.3d 857, 861 (10th Cir. 1996);

Montplaisir v. Leighton, 875 F.2d 1, 4 (1st Cir. 1989). Indeed, the Supreme Court

has gone so far as to extend this immunity to individual union officers, agents, or

members even if that individual’s conduct was unauthorized by the union and was

in violation of an existing collective bargaining agreement. Complete Auto Transit,

Inc. v. Reis, 451 U.S. 401, 402, 415-17 (1981). The immunity obtains “in contract

1

In 1970, Atkinson was overruled in part by Boys Markets, Inc. v. Retail Clerks Union, Local

770, 398 U.S. 235, 238 (1970), but for reasons unrelated to the points of law relevant to this dispute.

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or tort, or both, *** or in a separate action for damages.” Atkinson, 370 U.S. at 249;

Montplaisir, 875 F.2d at 4.

¶ 21 Of course, federal labor law is not directly controlling here. The Village of Fox

Lake is a political subdivision of the State of Illinois. The federal Labor

Management Relations Act does not apply to claims by public employees against

such entities. Marconi v. City of Joliet, 2013 IL App (3d) 110865, ¶ 22; Davenport

v. Washington Education Ass’n, 551 U.S. 177, 181 (2007); McGreal v. Village of

Orland Park, 12 C 5135, 2013 WL 3984477, at *11 (N.D. Ill. Aug. 2, 2013). Rather,

it is the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 2018)) that

governs our assessment of whether Zander may sue Carlson for malpractice. We

have recognized, however, that because of close similarities between that Act and

federal labor law, federal decisions interpreting the National Labor Relations Act

provide useful guidance in construing and applying the Illinois Public Labor

Relations Act. Matthews v. Chicago Transit Authority, 2016 IL 117638, ¶ 46 n.8;

Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations

Board, 178 Ill. 2d 333, 339 (1997); Illinois Fraternal Order of Police Labor

Council v. Illinois Local Labor Relations Board, 319 Ill. App. 3d 729, 737 (2001);

Rockford Township Highway Department v. State Labor Relations Board, 153 Ill.

App. 3d 863, 878 (1987).

¶ 22 Zander does not challenge the propriety of following federal precedent in

general. Likewise, he does not take exception to the proposition that Atkinson

provides useful guidance when applying the Illinois Public Labor Relations Act.

Rather, he argues that Atkinson is distinguishable and should not be construed to

bar actions such as his that seek recovery from union lawyers based on their alleged

professional malpractice. In Zander’s view, claims based on legal malpractice

present a special case. He contends that this court’s Rules of Professional Conduct

create a higher standard of care and that the state’s interest in protecting the public

from legal malpractice should transcend federal labor law.

¶ 23 As a preliminary matter, we note that there is no issue in this case of federal law

taking precedence over the canons governing the conduct of lawyers. That is so for

two reasons. First, as we have just noted, federal law does not control. We look to

federal precedent as guidance, not because we must, but because of the similarity

between federal labor law and the law in Illinois. When we elect to follow that

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precedent, we adopt it as a part of our interpretation of the law enacted by the

Illinois General Assembly. To the extent competing principles are involved,

striking the appropriate balance is therefore a matter of state law alone. Second, and

in any case, immunizing union lawyers from personal liability for actions taken on

behalf of the unions that employ them does not relieve those lawyers of their

professional obligations pursuant to this court’s Rules of Professional Conduct. If

a union lawyer violates the Rules of Professional Conduct, he or she remains

subject to disciplinary action. The conflict Zander seeks to create is therefore a false

one.

¶ 24 The next hurdle Zander faces is that Carlson did not actually have an attorney-

client relationship with Zander. Carlson was employed by the FOP and appeared in

the proceedings as a representative of the union to protect Zander’s rights under the

collective bargaining agreement it had negotiated on behalf of all the members of

the bargaining unit. According to Zander’s complaint, Carlson was “held out to the

members of the FOP as the FOP’s attorney” who would handle labor disputes or

grievances for the union on behalf of its members, Carlson met frequently with the

FOP regarding the Zander matter, Carlson and the union shared information and

had business discussions about the case, Carlson operated under the FOP’s control,

and Zander had no input into the union’s decision to appoint Carlson to his case.

¶ 25 Zander’s complaint does allege that, notwithstanding the foregoing, an

attorney-client relationship existed between him and Carlson. Zander argues that

we must accept this characterization as true for purposes of our review. He is

incorrect. The existence of an attorney-client relationship is a legal conclusion. See

Dietz v. Doe, 935 P.2d 611, 616 (Wash. 1997). A motion to dismiss does not admit

conclusions of law or conclusory factual allegations unsupported by specific facts

alleged in the complaint. McIntosh v. Walgreens Boots Alliance, Inc., 2019 IL

123626, ¶ 16.

¶ 26 Although this court has not previously addressed applicability of Atkinson to

lawyers employed by labor unions while engaged in matters related to collective

bargaining, the subject has been addressed elsewhere. The leading case is Peterson

v. Kennedy, 771 F.2d 1244, 1257 (9th Cir. 1985). In that decision, the United States

Court of Appeals for the Ninth Circuit rejected the position urged by Zander in this

case and concluded that union employees who are attorneys are subject to the

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Atkinson rule to the same extent as other union employees in matters arising under

a collective bargaining agreement or that otherwise relate to the collective

bargaining process. In reaching that conclusion, the court noted that “[l]abor

grievances and arbitrations frequently are handled by union employees or

representatives who have not received any professional legal training at all.” Id. at

1258. When a union instead hires an attorney “to act for it in the collective

bargaining process”—including in an “arbitration proceeding” where “the

underlying grievance belongs to a particular union member”—

“[t]hat union member surely is justified in expecting the attorney to perform in

a competent and professional manner; a portion of his dues is paid to enable the

union to represent his interests vis-a-vis his employer effectively in all stages

of the collective bargaining process. Nevertheless, when the union is providing

the services, it is the union, rather than the individual business agent or attorney,

that represents and is ultimately responsible to the member.” Id.

The court continued,

“We do not believe that an attorney who is handling a labor grievance on

behalf of a union as part of the collective bargaining process has entered into

an ‘attorney-client’ relationship in the ordinary sense with the particular union

member who is asserting the underlying grievance. Although the attorney may

well have certain ethical obligations to the grievant, his principal client is the

union; it is the union that has retained him, is paying for his services, and is

frequently the party to the arbitration proceedings.” Id.

The court further explained:

“The legal theory we describe tracks the practical realities of labor-

management relations in the United States today. The union member looks to

his union to save his job, gives it credit when a dispute is resolved in his favor,

and holds it responsible when his discharge is upheld or he loses other important

rights. He views the union attorney as an arm of his union rather than as an

individual he has chosen as his lawyer. In fact, it is not uncommon for the union

member to be completely unaware, at least prior to the arbitration hearing, of

who on the union’s staff is actually handling his grievance.” Id. at 1258-59.

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In those circumstances, the court held, “the rationale behind the Atkinson rule is

squarely applicable.” Id. at 1258.

¶ 27 The principle that attorneys who perform services for and on behalf of a union

may not be held liable in malpractice to union members pursuing grievances where,

as in this case, the services performed by the attorneys were part of the collective

bargaining process has been consistently followed by federal courts for more than

three decades. Carino v. Stefan, 376 F.3d 156, 160 (3d Cir. 2004) (Atkinson

prohibits claims made by a union member against attorneys employed by or

retained by the union to represent the member in a labor dispute); Waterman v.

Transport Workers’ Union Local 100, 176 F.3d 150, 150 (2d Cir. 1999) (per

curiam) (“[U]nder Atkinson a union’s attorneys may not be sued by an individual

union member for actions taken pursuant to a collective bargaining agreement.”);

Arnold, 100 F.3d at 862 (“[A]n attorney who performs services for and on behalf

of a union may not be held liable in malpractice to individual grievants where the

services performed constitute a part of the collective bargaining process.”); Breda

v. Scott, 1 F.3d 908, 909 (9th Cir. 1993) (employees cannot sue inside or outside

counsel for services rendered under a collective bargaining agreement);

Montplaisir, 875 F.2d at 7 (“[F]or purposes of the Atkinson principle, [attorneys]

must be treated the same as other union agents.”).

¶ 28 Courts applying state public sector labor laws have reached the same conclusion

based on the rationale of Atkinson and its progeny. Weiner, 116 P.3d at 833 (school

district employee’s claim for legal malpractice against attorney furnished by union

to handle arbitration barred—“[a]s an agent of the union, the attorney is not

susceptible to a malpractice claim; rather, a claim by the union member will only

lie against the union itself based on a breach of the duty of fair representation”);

Stafford v. Meek, 762 So. 2d 925, 926 (Fla. Dist. Ct. App. 2000) (union attorney

who handled grievance proceeding filed by school board employee challenging her

termination was immune from suit in subsequent action brought by employee for

legal malpractice, negligence, and breach of fiduciary duty—“[i]t is well settled

that union agents may not be held individually liable when they act on behalf of the

union in a collective bargaining activity”); Brown v. Maine State Employees Ass’n,

1997 ME 24, ¶ 10, 690 A.2d 956, 960 (attorney provided by state employees’ union

to handle grievance involving employee who had been suspended and demoted held

to be immune from suit for legal malpractice brought by the employee after

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grievance dismissed); Best v. Rome, 858 F. Supp. 271 (D. Mass 1994), aff’d, 47

F.3d 1156 (1st Cir. 1995) (outside counsel hired by union to handle arbitration

involving termination of civilian police department employee held to be immune in

suit brought by the employee when the arbitration yielded adverse outcome—

applying Massachusetts labor law).

¶ 29 The decisions of the circuit and appellate courts in the matter before us were

fully consistent with this long and consistent body of precedent. Zander has cited

no relevant authority that might warrant a contrary position. By way of example,

one of the decisions to which he devotes considerable discussion, Warren v.

Williams, 313 Ill. App. 3d 450 (2000), did not involve a union member or concern

collective bargaining. Unsurprisingly, it made no mention at all of the cases we

have just discussed.

¶ 30 Another of Zander’s authorities, Niezbecki v. Eisner & Hubbard, P.C., 717

N.Y.S.2d 815 (Civ. Ct. 1999), was a lower-level trial court matter in which a union

member attempted to sue a law firm for fraud and malpractice arising from the

firm’s work in connection with his grievance proceedings. Following established

precedent, the court concluded, predictably: “Defendant was legal counsel hired by

a union to represent plaintiff in grievance proceedings pursuant to a collective

bargaining agreement. In such cases, counsel enjoys unqualified immunity from

personal liability for malpractice and related misconduct. Therefore the court grants

summary judgment dismissing the complaint.” Id. at 823. This decision thus refutes

rather than supports Zander’s position.

¶ 31 The same is true of Aragon v. Federated Department Stores, Inc., 750 F.2d

1447 (9th Cir. 1995). In that case, a union member who was dissatisfied with the

outcome of her grievance sued her employer for breach of the collective bargaining

agreement, her union for breach of its duty of fair representation, and the law firm

hired by the union to handle the grievance for malpractice. Id. at 1448. Relevant to

this dispute is that the federal court ruled that the malpractice claim should be

remanded to state court, and it was. Id. at 1458. On remand, the trial court entered

summary judgment in favor of the law firm and against the union member. The

appellate court affirmed, expressly adopting the rationale of Atkinson, Peterson,

and related cases (Aragon v. Pappy, Kaplon, Vogel & Phillips, 262 Cal. Rptr. 646,

653-54 (Ct. App. 1989)), a development Zander does not mention.

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¶ 32 In sum, the circumstances of this case fall squarely within the Atkinson-

Peterson line of authority. As have other courts when interpreting their state public

labor relations statutes, and as the circuit and appellate courts did here, we believe

that line of authority should guide our interpretation of the Illinois Public Labor

Relations Act. Consistent with that authority, we conclude that Carlson was

immune from individual liability for any actions he took or failed to take in

connection with assisting Zander on behalf of the union pursuant to the collective

bargaining agreement following Zander’s termination by the Village. We therefore

agree with the appellate court that Zander’s malpractice claim against Carlson was

properly dismissed.

¶ 33 Zander cannot avoid this conclusion based on his alternative theory that he was

a third-party beneficiary of the relationship between Carlson and the FOP. As the

appellate court correctly recognized, applying third-party beneficiary principles to

override the immunity that would otherwise protect a union attorney under Atkinson

would shift liability for a union’s representation of its members from the union

itself to the union’s agent, the very thing Atkinson and Peterson say must not be

done. 2019 IL App (1st) 181868, ¶ 20. Other courts considering the question have

reached the same conclusion. See Carino, 376 F.3d at 162; Aragon, 262 Cal. Rptr.

at 654. Zander has pointed to no authority that would support a contrary result.

¶ 34 Here, as in the appellate court, Zander has raised the additional argument that

Carlson should be subject to liability to the extent he was covered by malpractice

insurance. We reject this argument as well. For one thing, Zander cites no relevant

precedent to support his theory. The cases he invokes pertain to bankruptcy and

sovereign immunity, separate and unrelated areas of the law. That aside, Zander

faces a second and more basic problem: he did not raise the issue in the circuit court

until he moved for reconsideration of the order granting defendants’ motion to

dismiss. Arguments raised for the first time in a motion for reconsideration in the

circuit court are forfeited (Evanston Insurance Co. v. Riseborough, 2014 IL

114271, ¶ 36) as the circuit and appellate courts both correctly recognized.

Although forfeiture is a limit on the parties rather than on the courts (Klaine v.

Southern Illinois Hospital Services, 2016 IL 118217, ¶ 41), Zander offers no

persuasive reason why we should overlook forfeiture in this case, and we decline

to do so.

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¶ 35 We turn then to Zander’s claims against the FOP itself. The Illinois Public

Labor Relations Act (5 ILCS 315/1 et seq. (West 2018)) imposes on public sector

labor unions a duty to fairly represent their members. Foley v. American Federation

of State, County, & Municipal Employees, 199 Ill. App. 3d 6, 9 (1990). The duty of

fair representation arises from the union’s statutory role as exclusive bargaining

agent. Jones v. Illinois Educational Labor Relations Board, 272 Ill. App. 3d 612,

619 (1995). If the union fails to fairly represent the interests of all members of a

bargaining unit, it commits an unfair labor practice pursuant to section 10(b)(1) of

the Act (5 ILCS 315/10(b)(1) (West 2018)). See Foley, 199 Ill. App. 3d at 9-10.

¶ 36 The General Assembly has made such claims subject to specific statutory

requirements. The Illinois Public Labor Relations Act expressly provides that “a

labor organization or its agents shall commit an unfair labor practice *** in duty of

fair representation cases only by intentional misconduct in representing

employees.” 5 ILCS 315/10(b)(1)(ii) (West 2018). Such claims are subject to a six-

month limitations period which begins to run when the charging party learns or has

notice of the actions that constitute the alleged unfair labor practice. Id. § 11(a);

Michels v. Illinois Labor Relations Board, 2012 IL App (4th) 110612, ¶ 38). In

addition, no claim that a union has committed an unfair labor practice, including a

claim that it has breached its duty of fair representation, may be brought in circuit

court. All such claims fall, instead, within the exclusive jurisdiction of the Illinois

Labor Relations Board. 5 ILCS 315/5 (West 2018); Cessna v. City of Danville, 296

Ill. App. 3d 156, 163 (1998); Foley, 199 Ill. App. 3d at 10.

¶ 37 Here, as in the lower courts, Zander attempts to move his claim against the FOP

beyond the reach of the Illinois Public Labor Relations Act, and thus place it outside

the exclusive jurisdiction of the Illinois Labor Relations Board, by characterizing it

as something other than a claim of breach of duty of fair representation. But Zander

cannot escape the Labor Relations Act’s comprehensive statutory scheme through

creative pleading. As federal courts have recognized when applying federal labor

law under similar circumstances, the fact that union members may have chosen

“not to couch their complaint as an unfair labor practice cuts no mustard. Where

labor-law preemption is an issue, creative labelling cannot carry the day.

Rather, the needed reconnaissance focuses upon ‘the conduct being regulated,

not the formal description of governing legal standards….’ Amalgamated Ass’n

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of Street, Electric Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274,

292, 91 S. Ct. 1909, 1920, 29 L.Ed.2d 473 (1971); see also Columbia Power

Trades, 671 F.2d at 329 (FLRA’s exclusive jurisdiction cannot be thwarted by

party’s characterization of lawsuit).” Montplaisir, 875 F.2d at 4.

¶ 38 In this case, Zander asserts that “the underlying facts do not stem [from] the

collective bargaining act.” From the allegations in his complaint, however, it is

manifest that the dispute giving rise to this litigation arises entirely from his status

as a union member under a collective bargaining agreement between the FOP and

Zander’s now-former employer. But for the collective bargaining agreement that

governed Zander’s employment by the Village, the FOP would have owed him no

duty. Indeed, it would have had no relationship with him of any kind. The appellate

court was therefore correct when it recognized that Zander’s attempt to hold the

FOP liable for its staff attorney’s conduct with respect to the arbitration proceeding

rests on the FOP’s duty to fairly represent Zander in matters related to the collective

bargaining process. 2019 IL App (1st) 181868, ¶ 24. Zander’s claim against the

union therefore fell within the exclusive jurisdiction of the Illinois Labor Relations

Board and was properly dismissed.

¶ 39 CONCLUSION

¶ 40 For the foregoing reasons, the appellate court was correct when it upheld the

circuit court’s dismissal of Zander’s cause of action. The judgment of the appellate

court, which affirmed the circuit court’s dismissal of Zander’s complaint, is

therefore affirmed.

¶ 41 Affirmed.

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