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                                      Appellate Court                           Date: 2018.07.25
                                                                                09:32:17 -05'00'




                  Knox v. Chicago Transit Authority, 2018 IL App (1st) 162265



Appellate Court          JAMES KNOX, Plaintiff-Appellant, v. THE CHICAGO TRANSIT
Caption                  AUTHORITY, Defendant-Appellee and Third-Party Plaintiff
                         (Amalgamated Transit Union Local 1241, Third-Party Defendant-
                         Appellee).



District & No.           First District, Fourth Division
                         Docket No. 1-16-2265



Rule 23 order filed      March 22, 2018
Motion to publish
allowed                  April 18, 2018
Opinion filed            April 26, 2018



Decision Under           Appeal from the Circuit Court of Cook County, No. 14-CH-6475; the
Review                   Hon. Diane J. Larsen, Judge, presiding.



Judgment                 Affirmed.


Counsel on               Halil G. Hampton, of HGH Law Firm, Ltd., of Chicago, for appellant.
Appeal
                         Karen G. Seimetz, Stephen Wood, and Rachel Kaplan, of Chicago
                         Transit Authority Law Department, of Chicago, for appellee Chicago
                         Transit Authority.
                               Ronald M. Willis and Josiah A. Groff, of Dowd, Bloch, Bennett,
                               Cervone, Auerbach & Yokich, of Chicago, for other appellee.



     Panel                     JUSTICE McBRIDE delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Burke and Justice Gordon concurred in the judgment
                               and opinion.


                                                 OPINION

¶1         Plaintiff, James Knox, appeals the circuit court’s dismissal of his complaint seeking relief
       in the form of back pay and benefits related to the reinstatement of his employment at the
       Chicago Transit Authority (CTA). The trial court dismissed plaintiff’s amended complaint,
       finding that it lacked subject matter jurisdiction over the matter. In this court, plaintiff argues
       that the dismissal was improper.
¶2         The record shows that plaintiff was a member of Amalgamated Transit Union Local 1241
       (Union) and employed by the CTA. Plaintiff was terminated on January 24, 2013, and grieved
       his termination pursuant to his collective bargaining agreement, which provided that disputes
       concerning the discharge of a Union employee were to be submitted to arbitration. Before the
       arbitrator, the CTA maintained that plaintiff had violated a Last Chance Agreement by
       engaging in misconduct on November 29, 2012, specifically, that he had failed to comply with
       work orders and falsely represented what he had been doing that day in verbal and written
       reports. On July 22, 2013, after hearing the evidence related to the alleged misconduct, the
       arbitrator found that the evidence established plaintiff’s misconduct and that the CTA had
       “good cause for their finding that [plaintiff] had violated the last Chance Agreement.”
       Specifically, the arbitrator noted that plaintiff testified that he began his shift at 2 p.m., and the
       evidence established that he had not performed the required inventory counts that he had been
       directed to perform as of 3:30 p.m., when his supervisor arrived and found that the inventory
       forms were blank and that plaintiff “was wearing gym shoes.”
¶3         Although plaintiff claimed that he had been talking to a coworker for an hour and 15
       minutes, the arbitrator found that the timeline of plaintiff’s version of events was inconsistent
       and concluded that plaintiff had “falsely represented in both verbal and written reports” what
       he had been doing that afternoon. The arbitrator noted, however, that plaintiff “had been
       retained on the payroll until January 24[,] 2013 without having been given any prior indication
       that he would be disciplined for the November 2012 misconduct.” Due to the delay, the
       arbitrator concluded that plaintiff “was treated arbitrarily, without due process and [wa]s
       entitled to be offered reinstatement.” However, “[c]onsidering his offense,” the arbitrator
       found that plaintiff was “not entitled to back pay or benefits.” (Emphasis omitted.)
¶4         Following the arbitrator’s decision, plaintiff filed a complaint for declaratory judgment and
       other relief against the CTA in the circuit court on April 15, 2014, seeking an award of back
       pay and benefits. He alleged that the denial of back pay and benefits violated section 12.6 of
       the collective bargaining agreement, which provided that, “[a]ny Employee, who, upon

                                                     -2-
     investigation, is found to have been discharged or suspended unjustly shall be reinstated and
     reimbursed for all time lost for such discharge or suspension.” Plaintiff sought “a declaration
     by the Court finding that pursuant to Section 12.6 of the Collective Bargaining Agreement,
     [p]laintiff is entitled to back pay and benefits.” Plaintiff also argued that the collective
     bargaining agreement “constituted a bi[n]ding and enforceable contract between [p]laintiff and
     [the CTA]” and that the CTA breached that contract. Plaintiff sought damages equal to his
     “loss of salary, reimbursement of health insurance costs and reimbursement for moving
     expenses” as well as “reasonable attorney[ ] fees.”
¶5        The CTA filed a motion to dismiss on June 13, 2014. In that motion, the CTA contended
     that plaintiff failed to allege a violation of the collective bargaining agreement, where the CTA
     and the Union had agreed to final and binding arbitration, and there were no allegations that the
     CTA had not complied with the arbitration award. The CTA also argued that plaintiff’s request
     for declaratory relief should be dismissed because it “hinges on *** [his] breach of contract
     claim, and does not allege any independent legal interest to state a claim for declaratory relief.”
     The CTA further argued that plaintiff lacked standing to challenge a breach of the collective
     bargaining agreement because he is not a party to the agreement and because “Illinois law
     specifically prohibits individual employees from bringing a suit to overturn the outcome of a
     grievance procedure or arbitration under a collective bargaining agreement absent exceptional
     circumstances.”
¶6        Plaintiff filed a response to the CTA’s motion to dismiss on August 14, 2014. Plaintiff
     acknowledged that “it appears to be true, that under most circumstances an individual,
     unionized employee lacks standing to challenge an arbitration award, which was made
     pursuant to a [collective bargaining agreement.]” However, plaintiff contended that his case fit
     into an “exception to th[at] rule” because “the U.S. Supreme Court has found that an employee
     does in fact have standing to challenge an arbitration decision, where it can be shown that the
     employee’s union failed to fairly represent the employee—thereby leaving the employee with
     no other recourse other [sic] than to seek relief at the trial level” (citing Vaca v. Sipes, 386 U.S.
     171 (1967)). Plaintiff further argued that the Illinois Supreme Court “adopted this reasoning
     ***, specifically finding that a union employee does have standing to challenge an arbitration
     decision, where it can be shown that the employees [sic] union did not provide fair and
     adequate representation during the grievance procedure and arbitration” (citing Stahulak v.
     City of Chicago, 184 Ill. 2d 176 (1998)). Plaintiff contended that his union did not provide him
     fair representation, and, accordingly, he had standing “to independently challenge [the CTA’s]
     breach of the [collective bargaining agreement].”
¶7        On October 8, 2014, the trial court struck plaintiff’s complaint “for failure to plead
     allegations raised in Plaintiff’s Response to [the CTA]’s Motion to Dismiss,” and granted
     plaintiff time to file an amended complaint to add those allegations. Plaintiff filed his amended
     complaint on November 12, 2014, which raised additional allegations regarding the Union’s
     duty of fair representation. Specifically, in the amended complaint, plaintiff alleged that,
     “despite [p]laintiff’s insistence, *** the Union attorney did not bring up the issue of back pay
     and benefits” during the arbitration hearing. After receiving the decision, plaintiff “informed
     his Union rep that he wanted the Union to challenge the decision to deny his back-pay and
     benefits” but “the Union rep informed [p]laintiff that he had no other recourse than to seek
     outside counsel and that the Union would be taking no further action.” Plaintiff further argued
     that the “failure of the Union to raise the issue of back-pay and benefits at the arbitration

                                                   -3-
       hearing and its subsequent refusal to challenge the decision to deny back-pay and benefits,
       constituted a breach of the Union’s duty of fair representation to [p]laintiff.”
¶8         In December 2014, the CTA filed a motion to dismiss plaintiff’s amended complaint. In
       that motion, the CTA contended that plaintiff’s claims were barred by collateral estoppel and
       res judicata because they had been previously litigated to final judgment through the grievance
       arbitration process. The CTA continued to argue that plaintiff lacked standing to challenge a
       breach of the collective bargaining agreement and that the court lacked subject matter
       jurisdiction over any claim that plaintiff’s union breached its duty of fair representation
       because it is “settled Illinois law that the Illinois Labor Relations Board and not the circuit
       courts hear such claims” (citing Cessna v. City of Danville, 296 Ill. App. 3d 156, 165-66
       (1998)). The CTA also contended that plaintiff failed to allege a violation of the collective
       bargaining agreement where the CTA and the Union had agreed to final and binding
       arbitration, and there was no allegation that the CTA has not complied with the arbitration
       award.
¶9         Plaintiff filed a response to the CTA’s motion to dismiss the amended complaint on
       February 5, 2015. Plaintiff continued to acknowledge that “[u]nder some circumstances an
       individual, unionized employee may lack standing to challenge an arbitration award, which
       was made pursuant to a [collective bargaining agreement]” but argued that he had standing “to
       independently challenge [the CTA’s] breach of the [collective bargaining agreement]” based
       on his allegation that the Union did not provide him fair representation.
¶ 10       Following briefing, the circuit court held a hearing on the CTA’s motion to dismiss on
       April 3, 2015. The court heard argument from the parties and denied the CTA’s motion. The
       court found that “the amended complaint contained sufficient factual allegations to plead that
       the union breached its duty of fair representation.” On May 1, 2015, the CTA filed a motion for
       reconsideration, which was denied on August 20, 2015.
¶ 11       Thereafter, on September 21, 2015, the CTA filed a “Third-Party Complaint for Implied
       Indemnification” against the Union, arguing that “[i]f, as the Complaint alleges, [the Union]
       breached its duty of fair representation to Plaintiff ***, then some or all of Plaintiff’s purported
       damages were caused by [the Union]’s breach of its duty of fair representation.” The CTA
       argued that, if damages were awarded, the Union would be “liable to CTA for any damages
       that flow from its breach of its duty of fair representation to Plaintiff.” The CTA contended
       that, “pursuant to 735 ILCS 5/2-406, a complete determination of the controversy between
       [p]laintiff *** and CTA cannot be had without the presence of [the Union] in the instant
       lawsuit.”
¶ 12       On November 13, 2015, the Union filed a motion to dismiss plaintiff’s amended complaint
       and the third-party complaint filed by the CTA. The Union alleged that plaintiff’s complaint
       was defective and that the circuit court lacked subject matter jurisdiction to consider it because
       the Illinois Labor Relations Board (Illinois Labor Relations Board or Board) has exclusive
       jurisdiction over claims that a Union breached its duty of fair representation. Alternatively, the
       Union claimed that plaintiff had not alleged sufficient facts to support a breach of the duty of
       fair representation, where he had made no allegations of intentional misconduct or retaliation
       by the Union. The Union also contended that third-party complaint should be dismissed
       because, “[i]f there is liability (which the Union disputes), the CTA and the Union are
       respectively liable for separate items of damage.” Finally, the Union argued that it had no
       obligation to contribute to the damages plaintiff was awarded from the CTA because it

                                                    -4-
       theoretically could be liable for back pay only after the date that the employee would have been
       reinstated and plaintiff was actually reinstated. Thus, it contended, there were no possible
       damages that could be attributable to the Union.
¶ 13       The CTA responded to the Union’s motion to dismiss on December 22, 2015. The CTA
       “agree[d] with the Union that Plaintiff’s Knox’s Amended Complaint should be dismissed,”
       but contended that the motion to dismiss should be denied as to the third-party complaint,
       because it was premature and the Union was a necessary party to a determination of the
       controversy between plaintiff and the CTA.
¶ 14       Plaintiff also responded to the motion to dismiss on December 23, 2015, contending that
       the Union’s arguments regarding his amended complaint had “already been adjudicated by the
       Court and therefore must be denied.”
¶ 15       On February 26, 2016, the circuit court held a hearing on the Union’s motion to dismiss.
       After allowing the parties to present arguments, the court indicated that it wanted to “go back
       to the subject matter jurisdiction” issue. Counsel for the Union maintained that the case law
       instructed that breach of the duty of fair representation cases were required to “go to the Labor
       Board,” but acknowledged that it appeared the court had “already decided the issue” to the
       contrary. Counsel for the CTA agreed that the Illinois Labor Relations Board had exclusive
       jurisdiction, adding that it was “subject matter jurisdiction over the question, not the party,”
       and thus, plaintiff’s complaint against the CTA could not survive if the court found that it
       lacked subject matter jurisdiction over the question of the Union’s breach of duty. The court
       stated that, after reviewing additional case law, it had reconsidered its prior order and found
       that it did not have subject matter jurisdiction over the matter. The court “sua sponte
       reconsider[ed] [its] prior decision,” “dismissed plaintiff’s complaint,” and “dismissed [the
       third-party complaint] as moot.” Plaintiff’s motion to reconsider the dismissal of the amended
       complaint was denied on July 19, 2016. Plaintiff filed a timely notice of appeal on August 16,
       2016.
¶ 16       In this court, plaintiff challenges the circuit court’s order, which dismissed the amended
       complaint for lack of jurisdiction and dismissed the third-party complaint as moot. Plaintiff
       argues that the trial court “improperly determined that it lacked subject matter jurisdiction to
       determine whether the Union breached its Duty of Fair Representation.” We review the court’s
       decision to dismiss an action for lack of subject matter jurisdiction de novo. Country Mutual
       Insurance Co. v. D&M Tile, Inc., 394 Ill. App. 3d 729, 735 (2009); Crossroads Ford Truck
       Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 26 (“Whether the circuit court had
       subject matter jurisdiction to entertain a claim *** is a question of law and will be reviewed
       de novo.”).
¶ 17       Both the CTA and the Union have filed response briefs before this court. Both parties agree
       that the trial court’s decision to dismiss the amended complaint was proper because the trial
       court lacked subject matter jurisdiction to consider plaintiff’s claim. The Union also makes
       additional arguments specific to the dismissal of the CTA’s third-party complaint against the
       Union. Specifically, it contends that “appellate jurisdiction does not exist” because plaintiff
       lacks standing to appeal the dismissal of the CTA’s third-party complaint. The Union also
       claims that it has no responsibility to share in the CTA’s possible liability to plaintiff and that
       plaintiff’s complaint is an untimely attack on an arbitration award pursuant to the Uniform
       Arbitration Act (710 ILCS 5/1 et seq. (West 2016)). Plaintiff has not filed a reply brief.


                                                    -5-
¶ 18        Because the Union has raised an issue implicating this court’s jurisdiction, we will
       consider that argument first. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539
       (1984) (a reviewing court has a “duty to consider its jurisdiction and to dismiss the appeal if it
       determines that jurisdiction is wanting”). Specifically, the Union contends that this court lacks
       jurisdiction because plaintiff lacks standing to appeal the dismissal of the CTA’s third-party
       complaint where only the CTA could appeal such dismissal and the CTA did not do so.
¶ 19        Initially, we note that our supreme court has clarified that issues of standing do not
       implicate our subject matter jurisdiction. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d
       217, 252 (2010). Under Illinois law, lack of standing is an affirmative defense that is the
       defendant’s burden to plead and prove, and it may be forfeited if not raised in a timely manner
       in the trial court. Id. at 252-53.
¶ 20        Nonetheless, we agree that plaintiff lacks standing to pursue an appeal against the Union.
       Standing in Illinois requires “some injury in fact to a legally cognizable interest.” Greer v.
       Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988). The purpose of the
       doctrine of standing is to ensure that issues are raised only by those parties with a real interest
       in the outcome of the controversy (Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004)) and that
       courts resolve actual controversies between parties rather than abstract questions or moot
       issues (Owner-Operator Independent Drivers Ass’n v. Bower, 325 Ill. App. 3d 1045, 1050
       (2001)).
¶ 21        Although plaintiff listed the Union as a party in his notice of appeal, plaintiff’s complaint
       in the trial court was only against the CTA, and he never amended that complaint to assert any
       claim against the Union. Instead, the Union was only brought into this action by the CTA’s
       third-party complaint, and once that third-party complaint was dismissed as moot, the CTA did
       not appeal that dismissal. Moreover, there is no question that the Union has not forfeited the
       issue of standing, as they have consistently raised the issue from the outset of their
       involvement and through this appeal.
¶ 22        In these circumstances, we conclude that plaintiff lacked standing to appeal the dismissal
       of the third-party complaint. See Clay v. Pepper Construction Co., 205 Ill. App. 3d 1018, 1022
       (1990) (“The right to appeal exists only in favor of a party whose rights have been prejudiced
       by the judgment or decree appealed from.”). Where plaintiff had raised no claim against the
       Union in the trial court and where he was not a party to the third-party complaint between the
       CTA and the Union, he had no rights that were prejudiced by the dismissal of the third-party
       complaint. See Stickler v. American Augers, Inc., 303 Ill. App. 3d 689, 692 (1999) (a
       nonsettling defendant did not have standing to appeal circuit court’s order as to its settling
       codefendants, where the nonsettling defendant had not timely filed a contribution claim against
       the settling codefendants); Clay, 205 Ill. App. 3d at 1023 (codefendants who had not asserted a
       counterclaim for contribution against a defendant lacked standing to appeal the granting of
       summary judgment which dismissed the defendant from the case); Tisoncik v.
       Szczepankiewicz, 113 Ill. App. 3d 240, 247 (1983) (defendant who had not asserted a
       counterclaim for contribution against its codefendants lacked standing to appeal the dismissal
       of the codefendants from the case). Accordingly, we find that plaintiff lacked standing to
       appeal the dismissal of the third-party complaint, and we dismiss the Union from this appeal.
¶ 23        Having so found, we turn to plaintiff’s challenge to the circuit court’s order that dismissed
       plaintiff’s amended complaint against the CTA. Specifically, plaintiff contends that the circuit
       court erroneously determined that it lacked subject matter jurisdiction to determine whether

                                                    -6-
       the Union breached its duty of fair representation and that such a question may be properly
       considered by the circuit court.
¶ 24        The only parties to a collective bargaining agreement are the union and the employer.
       Stahulak, 184 Ill. 2d at 184. Accordingly, individual employees ordinarily lack standing to
       seek judicial review of arbitration awards. Id. at 180-81. There is, however, an exception to this
       rule, which plaintiff argues is applicable in this case. An individual employee has standing to
       challenge the arbitration award in court where the employee can show that the union breached
       its duty of fair representation—i.e., “that the union’s conduct in processing the grievance was
       arbitrary, discriminatory, or in bad faith.” Id. at 181, 184. The duty of fair representation stems
       from a union’s statutory role as exclusive bargaining agent. Jones v. Illinois Educational Labor
       Relations Board, 272 Ill. App. 3d 612, 619 (1995).
¶ 25        This court, however, has held that Illinois Labor Relations Board has exclusive jurisdiction
       to determine whether the union breached its duty of fair representation. In Foley v. American
       Federation of State, County & Municipal Employees, 199 Ill. App. 3d 6 (1990), the plaintiffs
       were parole officers employed by the Illinois Department of Corrections and members of the
       defendant union. They filed a grievance with the union over actions of the employer, and the
       union processed the grievance through the third step of the grievance procedure established by
       the collective bargaining agreement. Id. at 8. After the union refused to arbitrate the grievance
       on the basis that the claim could not prevail, the plaintiffs filed a complaint in the circuit court,
       alleging that the union had breached its duty of fair representation and the employer had
       breached the collective bargaining agreement. The circuit court dismissed the complaint,
       finding, as to the union, that exclusive jurisdiction lay with the Board. Id. The appellate court
       affirmed, explaining that, under the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat.
       1987, ch. 48, ¶ 1606(d)), unions have the duty to fairly represent the interests of all of their
       members, and, a breach of this duty constitutes an unfair labor practice under the Act. Foley,
       199 Ill. App. 3d at 9-12. As such, claims involving breach of the duty of fair representation are
       “subject to the Act’s comprehensive scheme of remedies and administrative procedures,” and
       the Act gives the Board exclusive jurisdiction to resolve such claims. Id. at 10. Regarding the
       plaintiffs’ claim against their employer, the Illinois Department of Corrections, the court found
       that the claim was against the State of Illinois for purposes of the immunity statute, and was
       required to be brought in the court of claims. Id. at 12.
¶ 26        The court in Foley also explained that there are important policy considerations underlying
       this rule. The Act provides a comprehensive set of remedies and procedures for resolving labor
       disputes involving public employees, the unions that represent them, and the agencies that
       employ them. Id. at 10. One reason the Act confers on the Board exclusive jurisdiction to
       resolve charges involving unfair labor practices—including breach of a union’s duty of fair
       representation—is that allowing trial courts to decide such questions would inevitably lead to
       “[i]nconsistent judgments and forum shopping” which would undermine the goal of
       uniformity sought to be achieved by the Act. Id. at 11. The court also noted that the already
       overburdened court system would face increased amounts of unnecessary litigation should
       there be concurrent jurisdiction over breach of duty of fair representation claims. Id.
¶ 27        In arguing that jurisdiction exists in the circuit court, plaintiff relies on Vaca, 386 U.S. 171,
       in which the United States Supreme Court found a cause of action in federal court for breach of
       the duty of fair representation claims, even though the same claim can also be brought before
       the National Labor Relations Board (NLRB). However, Illinois courts have distinguished and

                                                     -7-
       rejected the analysis in Vaca, when applied in the context of the Act. This court has noted that
       the Supreme Court’s decision was based in part on the concern that, under federal law, the
       general counsel of the NLRB had unreviewable discretion to refuse to institute an unfair labor
       practice complaint and the federal statute provided for no review of this decision. See Foley,
       199 Ill. App. 3d at 11 (citing Vaca, 386 U.S. at 182-83). By contrast, the Act sets forth explicit
       standards by which the Board must determine whether to issue an unfair labor practice
       complaint, and a decision by the Board’s executive director not to issue a complaint is
       appealable to the Board and ultimately to the appellate court on administrative review. See id.
       at 11-12.
¶ 28       Plaintiff argues that Foley is distinguishable from this case, and that the trial court erred in
       relying on it. Plaintiff contends that the court in Foley “exclusively relied upon” Board of
       Education of Community School District No. 1 v. Compton, 123 Ill. 2d 216, 219 (1988), in
       deciding to reject Vaca, when, according to plaintiff, the Compton decision was “never
       intended to apply to non-educational labor unions.” See Foley, 199 Ill. App. 3d at 10-11.
       Plaintiff’s argument essentially asks this court to determine that Foley was wrongly decided
       because it applied Compton in a non-educational union context. We find no support for
       plaintiff’s contention, and decline to do so.
¶ 29       Plaintiff also argues that Foley is distinguishable because the Foley court’s holding
       regarding the Board’s exclusive jurisdiction over claims involving the duty of fair
       representation was made in relation to the Foley plaintiffs’ claims against their union, where
       plaintiff’s action is against his employer. The Fourth District appellate court addressed this
       issue in Cessna, 296 Ill. App. 3d at 161-68, specifically finding that the circuit court lacks
       jurisdiction to consider whether a union breached its duty of fair representation, and thus, the
       circuit court cannot consider such claims against the union, or claims against an employer for
       breach of contract claims that are premised on the union’s breach. The court in Cessna
       concluded that:
                “Were we to agree with plaintiff that the circuit court has jurisdiction over her breach of
                contract claim against the City, employees could thwart the purpose of the Act to vest
                jurisdiction in the Board over matters involving collective-bargaining agreements.
                Plaintiff alleges in count I that the City wrongfully discharged her and arbitrarily
                applied to her certain rules and regulations promulgated pursuant to the Agreement.
                These allegations cannot be addressed by the circuit court without interpreting the
                Agreement and viewing the City’s alleged actions in light of this interpretation. These
                are matters that fall within the expertise of the Board.
                                                     ***
                    Allowing plaintiff to pursue her contract claim against the City in circuit court
                would undermine the Act’s stated purpose and frustrate the legislature’s intent to
                provide a uniform body of law in the field of labor-management relations to be
                administered by those who have the required expertise in this area. Concurrent
                jurisdiction may lead to forum shopping and inconsistent judgments in similar factual
                settings. Another consideration is the fact that circuit courts lack jurisdiction to hear
                claims against unions for breach of the fair duty of representation. Pleading and
                proving such claims is a prerequisite to maintaining an action against an employer for
                breach of the collective-bargaining agreement. Should we adopt plaintiff’s position,
                circuit courts would be faced with the awkward situation of putting an action against an

                                                    -8-
                employer for breach of contract on hold while the Board decides whether the union
                breached its duty to the employee of fair representation. Undue delay in the circuit
                courts would certainly result.
                    Thus, we hold that the circuit court lacked subject-matter jurisdiction over
                plaintiff’s claim of breach of contract in count I of her complaint and exclusive
                jurisdiction lies with the Board.” Id. at 165-68.
¶ 30        We also reject plaintiff’s reliance on Cosentino v. Price, 136 Ill. App. 3d 490 (1985), and
       Parks v. City of Evanston, 139 Ill. App. 3d 649 (1985), both of which were decided before
       Foley and Cessna. Importantly, those cases did not consider the Act, because both cases
       concerned alleged union breaches of the duty of fair representation that occurred prior to its
       effective date.1 See Board of Education of Warren Township High School District 121 v.
       Warren Township High School Federation of Teachers, Local 504, 128 Ill. 2d 155, 165 (1989)
       (“Where the legislature enacts a comprehensive statutory scheme, creating rights and duties
       which have no counterpart in common law or equity, the legislature may define the ‘justiciable
       matter’ in such a way as to preclude or limit the jurisdiction of the circuit courts.”).
¶ 31        We find plaintiff’s reliance on Stahulak, 184 Ill. 2d 176, to be misplaced as well. In
       Stahulak, the plaintiff brought an action against the City of Chicago, the fire department, and
       the union, asking the court to vacate the arbitration award after his employment termination.
       Id. at 178. The circuit court vacated the arbitration award, and the supreme court reversed. The
       court held that proceedings to vacate an arbitration award entered pursuant to a collective
       bargaining agreement must be brought by a party to the agreement, in that case the city and the
       union, but not the plaintiff. Although the court held that “[i]ndividual employees represented
       by a union lack standing to seek judicial review of a grievance procedure unless they prove that
       their union breached its duty of fair representation,” it did not consider or determine where
       jurisdiction lies to make that determination. Id. at 183-84. The court did not address or overrule
       Foley or Cessna, which, as stated above, concluded that exclusive jurisdiction to consider that
       question lies with the Board. We agree with Stahulak that an individual employee represented
       by a union cannot seek judicial review of a grievance procedure unless he proves that their
       union breached its duty of fair representation. However, pursuant to Foley and Cessna, that
       determination must be made by the Board before an employee may bring an action in the
       circuit court.
¶ 32        Nonetheless, even if we were to conclude that, under Stahulak, a claim of the breach of the
       duty of fair representation need not be brought before the Board, we would still conclude that
       plaintiff’s claims fail to implicate the exception to the general rule that an individual employee
       lacks standing to seek judicial review of arbitration awards. As stated above, in order to show
       that a union breached its duty of fair representation, an employee must show “that the union’s
       conduct in processing the grievance was arbitrary, discriminatory, or in bad faith.” Id. at 181.
       A union violates its duty of fair representation only where it commits intentional misconduct in
       representing an employee. See Michels v. Illinois Labor Relations Board, 2012 IL App (4th)
       110612, ¶ 48 (citing 5 ILCS 315/10(b)(1) (West 2008), and Metropolitan Alliance of Police v.
       Illinois Labor Relations Board, 345 Ill. App. 3d 579, 587-88 (2003)). To establish intentional

           1
            We also reject plaintiff’s reliance on Degenhardt v. City of Chicago, 2014 IL App (1st) 121139-U,
       which is an unpublished case and cannot be cited for authority before this court. Ill. S. Ct. R. 23 (eff.
       July 1, 2011).

                                                       -9-
       misconduct, the employee must prove by a preponderance of the evidence (1) the union’s
       conduct was intentional and directed at the charging party and (2) the intentional action
       occurred because of and in retaliation for some past activity by the employee or because of
       animosity between the employee and the union’s representatives. Id.
¶ 33       In this case, plaintiff merely states that the Union breached its duty of fair representation,
       but he provides no specific factual allegations that would support such a conclusion. Although
       plaintiff conclusively claims that the Union “did not bring up the issue of back pay and
       benefits” during the arbitration hearing, it is apparent from the arbitration award itself that the
       issue of back pay and benefits was before the arbitrator, who found that “[c]onsidering
       [plaintiff’s] offense, he is not entitled to back pay or benefits.” (Emphasis in original.) The fact
       that the arbitrator decided the issue against plaintiff does not establish that the Union breached
       its duty of fair representation. Plaintiff has not pleaded any allegations that would support a
       conclusion that the Union committed intentional conduct directed at him that was retaliatory or
       due to animosity between him and the union representatives. Id.
¶ 34       We thus conclude that the exception to the general rule that employees lack standing to
       seek judicial review of arbitration awards does not apply, and the trial court lacked jurisdiction
       to consider plaintiff’s claim that the Union breached its duty of fair representation. See Cessna,
       296 Ill. App. 3d at 161-68.
¶ 35       For the foregoing reasons, we conclude that the trial court lacked jurisdiction to hear
       plaintiff’s case. Accordingly, we affirm the circuit court’s order dismissing the complaint for
       lack of subject matter jurisdiction.

¶ 36      Affirmed.




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