No. 1-10-0631

                                                                     SECOND DIVISION
                                                                     JANUARY 11, 2011

AMALGAMATED TRANSIT WORKER'S       )
UNION, LOCAL 241,                  )                         Appeal from the
                                   )                         Circuit Court of
          Plaintiff-Appellant,     )                         Cook County
                                   )
     v.                            )                         No. 09 CH 29105
                                   )
PACE SUBURBAN BUS DIVISION of the  )                         Honorable
REGIONAL TRANSPORTATION AUTHORITY, )                         Daniel Riley,
PACE WEST DIVISION,                )                         Judge Presiding.
                                   )
          Defendant-Appellee.      )

       JUSTICE CONNORS delivered the judgment of the court, with opinion.
       Presiding Justice Cunningham and Justice Karnezis concur in the judgment and opinion.

                                            OPINION

       Plaintiff Amalgamated Transit Worker's Union, Local 241, filed a complaint in the

circuit court of Cook County against defendant Pace Suburban Bus Division, seeking a

declaratory judgment and an injunction.      Plaintiff alleged that defendant unlawfully imposed

suspensions and fines on plaintiff's members when buses that they operated were photographed

running red traffic lights. The circuit court granted defendant's motion to dismiss the complaint

under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)), finding

that a collective bargaining agreement, which contained a grievance and arbitration process,

governed the dispute between the parties. We affirm.

                                        BACKGROUND

       Our recitation of the facts of this case is drawn from plaintiff's complaint, which we take

as true when reviewing a motion to dismiss under section 2-619 of the Code of Civil Procedure


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No. 1-10-0631

(735 ILCS 5/2-619 (West 2008)). See Coady v. Harpo, Inc., 308 Ill. App. 3d 153, 158-59

(1999).

          Defendant is a division of the Regional Transportation Authority, which provides public

transportation in the Chicago area. Among other duties, defendant operates buses on routes

throughout western Cook County. Plaintiff is a labor organization that is composed of and

represents the collective interests of defendant's employees, including bus drivers.

          Beginning in 2006, municipalities in western Cook County began installing “red light

cameras” at intersections in their jurisdictions. Red light cameras work by automatically taking

photographs of any vehicle that enters an intersection while the traffic signal in that direction is

red. See 625 ILCS 5/11-208.6 (West 2008). Under authority granted to them by the Illinois

Vehicle Code (625 ILCS 5/11-208.3(a) (West 2008)), these municipalities also created a system

of administrative adjudication for violations of automated traffic laws (625 ILCS 5/11-208.6

(West 2008)). By statute, when red light cameras capture a violation, the municipality is

required to mail written notice of the violation to the registered owner of the vehicle. See 625

ILCS 5/11-208.6(d) (West 2008). The notice must include copies of the photographs taken of

the vehicle by the red light camera, as well as other information such as the date, time, and

location of the alleged violation. See 625 ILCS 5/11-208.6(d)(1) through (10) (West 2008).

Registered owners may choose to pay the civil fine for the violation, or they may contest the

violation at an administrative hearing. See 625 ILCS 5/11-208.6(d)(10) (West 2008). The only

statutory defenses available to the registered owner at the hearing are either that the vehicle or its

plates were reported as stolen before the alleged violation, or that the driver of the vehicle

entered the intersection in order to yield to an emergency vehicle or as part of a funeral

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No. 1-10-0631

procession. See 625 ILCS 5/11-208.6(h) (West 2008). There are no provisions in the statute

that anyone other than the registered owner of a vehicle is legally responsible for payment of a

fine assessed under section 11-208.6.

        This case arose when defendant began receiving traffic tickets for violations of section

11-208.6. Defendant learned from these notices that buses that it owned and operated had

allegedly run red lights at intersections with red light cameras. According to the complaint,

defendant began “effectively reassigning” these traffic tickets to the bus drivers who had been

operating the vehicle at the time of the alleged violation. Under defendant's alleged policy,

defendant requires the bus driver to pay the fine and suspends the driver for between one and

five days, with the possibility of termination of employment for three or more violations. The

complaint alleges that defendant does not provide either the driver or plaintiff with a copy of the

ticket or photographs of the alleged violation in a timely manner, which prevents the driver from

contesting the charge.

        The complaint asserted that defendant's policy is illegal because, according to the Vehicle

Code, only the registered owner of the vehicle is legally obligated to pay the fine, not the driver

at the time of the alleged violation. Plaintiff sought a declaratory judgment that defendant's

practice of “reassigning” the traffic ticket to its employees is not justified by Illinois law and is

ultra vires. Plaintiff further sought an injunction that would require defendant to give timely

notice of any alleged violation of section 11-208.6 and would prohibit defendant from requiring

its drivers to pay fines associated with the alleged violations.

        Defendant moved to dismiss the complaint under section 2-619(a)(9) of the Code of Civil

Procedure (735 ILCS 2-619(a)(9) (West 2008)). In its motion, defendant argued that the parties

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No. 1-10-0631

had entered into a collective bargaining agreement (CBA), which contained a binding grievance

and arbitration procedure for any disputes that arise under the CBA. Defendant contended that,

although plaintiff framed its allegations in terms of unlawful “reassignment” of traffic tickets,

plaintiff's complaint was in reality directed at the manner in which defendant disciplined its

employees for on-the-job traffic violations. Defendant attached to its motion the four pages of

the CBA that deal with the grievance process, as well as a clause that states, “[Plaintiff] agrees

that it will not in any way interfere with or attempt to limit the right of [defendant] to discharge

or discipline its employees for any reason where sufficient cause can be shown.” Defendant

argued that, because the CBA deals with the specific issue that is in dispute, plaintiff must

exhaust its contractual remedies under the CBA before bringing an action in the circuit court.

          After full briefing by the parties, the circuit court heard oral argument on January 21,

2010. The circuit court rejected plaintiff's arguments and agreed with defendant, stating “I don't

find [defendant's] action here to be contradictory or in violation of the law. [Defendant] is

acknowledging for purposes of the motion that they have a legal obligation to pay [the tickets]. I

*** find that it is in fact a grievance related to the performance of the job duties and that the

matter should be arbitrated under the terms of the collective bargaining agreement.” The circuit

court granted defendant's motion to dismiss with prejudice, and plaintiff filed a timely notice of

appeal.

                                              ANALYSIS

          On appeal, plaintiff argues that the CBA does not cover the defendant's actions and that

this matter is therefore not required to go through the grievance and arbitration process spelled

out in the CBA. Defendant counters that the trial court properly dismissed the complaint

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No. 1-10-0631

because defendant's policy is related to the discipline of its employees, which is covered by the

CBA.

       We review an order of dismissal under section 2-619(a)(9) of the Code of Civil

Procedure de novo, accepting as true all well-pled facts contained in the complaint and in any

uncontradicted affidavits attached to the motion. See Coady v. Harpo, Inc., 308 Ill. App. 3d 153,

158-59 (1999). The question on review is “ ' whether the existence of a genuine issue of material

fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is

proper as a matter of law.' ” Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 110 (1999), quoting

Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993).

       Neither party disputes the facts as they are laid out in the complaint, and neither party

denies that the portion of the CBA that we have in the record is accurate and is binding upon the

parties. Ordinarily, if a collective bargaining agreement exists and it contains a grievance and

arbitration procedure, “an employee alleging a violation of the agreement must attempt to

exhaust his or her contractual remedies before seeking judicial relief.” Kostecki v. Dominick's

Finer Foods, Inc., of Illinois, 361 Ill. App. 3d 362, 369 (2005). However, only “grievances” are

subject to arbitration, and any claims that are not covered by the agreement may be pursued in

the circuit court. See id. at 369-70. Consequently, the only question that we must decide on

appeal is whether defendant's policy of suspending drivers accused of red light camera violations

and requiring them to pay the fines is a grievance within the meaning of the CBA.

       We initially note that the portion of the CBA in the record does not contain a definition

of the term “grievance.” However, “[e]ngrafted on every written contract are the customs,

practices and definitions which are commonly understood and accepted by the parties.” Colgan

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No. 1-10-0631

v. Rae-Ann Electric Co., 91 Ill. App. 3d 386, 390 (1980). Our supreme court has noted that a

grievance is generally understood to mean “any complaint by an employee concerning any

aspect of the employment relationship.” City of Freeport v. Illinois State Labor Relations

Board, 135 Ill. 2d 499, 530 (1990), quoting Roberts' Dictionary of Industrial Relations 170-71

(1971). Because the employment relationship between the parties here is governed by the CBA,

we take the term grievance to mean any dispute over the rights and obligations of the parties as

they are defined by the CBA.

        Our first task is to determine the nature of the actions at issue. Plaintiff complains of

three aspects of defendant's policy: (1) suspending and possibly terminating drivers for alleged

red light camera violations, (2) failing to give drivers sufficient notice of the allegations against

them, and (3) requiring drivers to pay the fines for the red light camera violations. We find that

the first portion of the policy is properly characterized as a disciplinary issue. The complaint

itself alleges that defendant “disciplines Bus Operators [who are] reassigned red light tickets or

citations by suspending them.” (Emphasis added.) Disciplinary actions are explicitly addressed

in the CBA, in which plaintiff agreed not to interfere with defendant's right to discipline or

discharge its employees. Because suspension is a disciplinary matter and is therefore within the

scope of the CBA, any dispute over this issue must be submitted through the CBA's grievance

process.

        The second portion of the policy is also related to employee discipline. The complaint

asserts that “Bus Operators have a right to timely notice of any traffic violations that they are

alleged to have committed. [Defendant's] practice, policy or custom *** deprives Bus Operators

of the timely notice required. *** [Defendant's] illegal practice, policy or custom has resulted

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No. 1-10-0631

in Bus Operators incurring and paying unjustified and increased fines and penalties as well as

suspensions and other discipline.” (Emphasis added.) As noted above, defendant has a right to

discipline its employees. However, the CBA explicitly limits defendant's right only to situations

where “sufficient cause can be shown.” The plain meaning of plaintiff's allegation is that, by not

providing sufficient notice of the alleged traffic violation to an employee, defendant has failed to

demonstrate sufficient justification for imposing discipline on that employee. A dispute between

the parties over whether defendant is disciplining its employees without sufficient cause is an

issue that is explicitly covered by the CBA, and consequently it must also be addressed through

the CBA's grievance process.

        The third portion of the policy is more difficult to characterize. Plaintiff argues that

defendant is the only entity that is legally obligated to pay red light camera citations and that its

practice of “reassigning” the ticket to its bus drivers and forcing the bus driver to pay the ticket

is illegal and ultra vires. “An ‘assignment’ is a transfer of property or some other right from one

person (the ‘assignor’) to another (the ‘assignee’), which confers a complete and present right in

the subject matter to the assignee. An assignment is a contract between the assignor and the

assignee, and is interpreted or construed according to the rules of contract construction.” 6 Am.

Jur. 2d Assignments §1 (West 2008). Common law and statutory rights are generally assignable,

absent a clear statute or public policy to the contrary. See 6 Am. Jur. 2d Assignments §7 (West

2008). Plaintiff characterizes defendant's policy of requiring bus driver's to pay the red light

ticker as an “assignment,” and it sought a judicial declaration that such an assignment is void as

against public policy.

        However, we find that defendant's policy is not an assignment. Even assuming, without

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No. 1-10-0631

deciding, that a red light camera citation is assignable, there is no indication in the complaint that

an assignment has occurred in this case. Plaintiff does not indicate that there is any contract of

assignment between defendant and the bus drivers who are accused of running red lights, and

without such an agreement there can be no assignment. Indeed, the complaint does not allege

that an assignment occurred at all. Instead, the complaint merely alleges that defendant is

“effectively reassigning” (emphasis added) the citations, indicating that no assignment in the

legal sense has occurred.

       Moreover, the bus drivers themselves do not appear to actually pay the fine to

municipalities. If an assignment of a red light camera citation had occurred, then the bus driver

would be obligated to pay the fine directly to the municipality. That does not appear to be the

case here. Rather, it seems that defendant pays the fine, and then defendant requires bus drivers

to reimburse it for the amount paid to the municipality. The complaint specifically alleges that

defendant has “demanded that the employee Bus Operators pay for the red light tickets or

citations” and that defendant “has in fact collected payments from Bus Operators after

demanding that they pay red light camera violations.” (Emphasis added.)

       Based on plaintiff's own allegations, defendant does not “assign” the red light citation to

its employees. Rather, defendant's policy is that its employees must reimburse it for the citations

that it is obligated to pay to municipalities due to red light camera violations. There is

consequently no transfer of a right or an obligation from defendant to its employees, meaning

that no assignment of the traffic citation has occurred. As a result, we find that defendant's

action is properly characterized as disciplinary in nature because it imposes a monetary sanction

on the employee for an alleged violation of a traffic law to the detriment of defendant. As a

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No. 1-10-0631

disciplinary matter, defendant's practice of fining employees for red light camera violations falls

under the CBA, and any dispute over this issue must be submitted through the grievance process.

        Although we find that each component of defendant's policy is covered by the CBA and

therefore must be addressed thorough the CBA's grievance procedures, plaintiff contends that the

circuit court may still address plaintiff's claims because they exist independently of the CBA.

Plaintiff relies on three cases for this proposition, but we find that each of these cases are

distinguishable.

        First, plaintiff relies on Semmens v. Board of Education of Pontiac Community

Consolidated School District No. 429, 190 Ill. App. 3d 174 (1989). In Semmens, a group of

teachers claimed that they had been unlawfully denied a duty-free lunch period of at least 30

minutes each day, in violation of section 24-9 of the School Code (Ill. Rev. Stat. 1985, ch. 122,

par. 24-9). See Semmens, 190 Ill. App. 3d at 176. The circuit court granted the defendant's

motion to dismiss on the ground that a collective bargaining agreement between the teachers and

the school district required arbitration of any dispute before the Illinois Education Labor

Relations Board. See id. The collective bargaining agreement contained a section entitled

“Lunch Period,” but the section was completely blank. See id. at 177. The appellate court

reversed, finding that the collective bargaining agreement did not address the lunch period issue

and that arbitration therefore was not mandatory. See id. at 181.

        Unlike Semmens, the CBA in the instant case deals directly with discipline of employees.

The CBA does not contain any specific clauses that specify what offenses an employee may be

disciplined for, but this fact does not take the issue of discipline itself outside the scope of the

CBA. The collective bargaining agreement in Semmens demonstrably failed to address the issue

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No. 1-10-0631

of a lunch period. In contrast, the parties' present dispute is whether and how an employee may

be disciplined for a red light camera citation, which is an issue that falls within the discipline

clause of the CBA. We consequently find that Semmens is distinguishable.

        Second, plaintiff cites Daniels v. Board of Education of the City of Chicago, 277 Ill. App.

3d 968 (1996). In Daniels, the plaintiffs sued to recover the value of accrued vacation days that

they had not been able to use prior to being laid off by the defendant. See id. at 968. The trial

court dismissed the complaint because the plaintiffs had not first exhausted their remedies under

their collective bargaining agreement, which contained a section outlining how vacation days

accumulate. See id. The appellate court reversed, finding that, although the collective

bargaining agreement did address the issue of vacation days, the plaintiffs' cause of action did

not arise under the agreement. See id. at 972. Instead, the court found that the plaintiffs had an

independent statutory right to compensation for unused vacation days under the Illinois Wage

Payment and Collection Act (820 ILCS 115/5 (West 1992)).

        Unlike Daniels, there is no independent statutory right at issue here. Plaintiff argues that

its action for declaratory judgment and an injunction arises from section 11-208.6 of the Vehicle

Code (625 ILCS 5/11-208.6 (West 2008)), which requires a municipality to issue a citation for a

red light camera violation to “the registered owner of the vehicle as the alleged violator.” 625

ILCS 5/11-208.6(d) (West 2008). We do not agree with plaintiff's analysis. There is no

indication in the complaint that defendant has caused any municipality to illegally issue a

citation to an individual who is not the registered owner. Indeed, defendant acknowledges that it

has a legal obligation to pay the fines because it owns the vehicles accused of violating section

11-208.6. Despite plaintiff's contentions, its cause of action arises from defendant's alleged

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violation of the disciplinary clause of the CBA, not independently from a state statute. Daniels

is therefore distinguishable.

        Finally, plaintiff relies on Croom v. City of DeKalb, 71 Ill. App. 3d 370 (1979). In

Croom, the plaintiff firefighters sought an injunction that would require the defendant to abide

by an arbitration clause in their collective bargaining agreement during a dispute over additional

pay for performing certain duties. See id. at 370-71. The agreement did not contain any

provision that dealt with additional pay, and both the circuit court and the appellate court found

that the parties had therefore not agreed to arbitrate that issue. See id. at 376.

        We find Croom to be distinguishable for two reasons. First, the arbitration clause in

Croom mandated arbitration only for grievances over express provisions of the collective

bargaining agreement. See id. at 375. Because the question of additional pay was not expressly

addressed in the agreement, it was therefore not subject to arbitration. See id. at 375-76. Unlike

Croom, the CBA in the instant case requires all grievances that “arise under” the CBA to be

submitted through the grievance process. This language is significantly broader than in Croom,

and therefore a broader category of grievances than those expressly mentioned in the CBA are

subject to arbitration. Second, discipline of defendant's employees is explicitly within the scope

of the CBA, which is the opposite factual situation as that in Croom and which therefore requires

a different result. Croom is consequently distinguishable.

                                          CONCLUSION

        Defendant's policy of imposing suspensions and fines on employees accused of red light

camera violations is a disciplinary matter. Additionally, the issue of the sufficiency of notice

that defendant provides to its employees regarding alleged red light camera violations is a

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dispute over defendant's method of disciplining its employees. Because defendant's right to

discipline its employees is a grievance that is within the scope of the CBA, it is subject to the

grievance and arbitration process specified in the CBA. Plaintiff did not exhaust its contractual

remedies under the CBA prior to bringing the instant action in the circuit court, and as a result

the circuit court properly dismissed the complaint.

       Affirmed.




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