# Zander v. Carlson

> Illinois Supreme Court · November 19, 2020 · 2020 IL 125691

URL: https://www.frixlaw.com/law-library/cases/4587715

## Case

- **Court:** Illinois Supreme Court
- **Decided:** November 19, 2020
- **Citations:** 2020 IL 125691
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4587715

## How later opinions describe it (automated extraction)

- finding the plaintiff could not remove his claim against the FOP from within the statutory scheme of the IPLRA through “creative pleading” “by characterizing it as something other than a claim of breach of duty of fair representation”
- stating, “[a]rguments raised for the first time in a motion for reconsideration in the circuit court are forfeited”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4587715. Public record. Not legal advice.