Opinion
No. 01 C 6078
December 13, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Kirsch has been employed by the Illinois Department of Human Services for the past fourteen years and has been assigned to the Elizabeth Ludeman Developmental Center for the past eight years. She is a member of AFSCME Local 2645, which is the exclusive bargaining agent for employees at the Center. AFSCME Council 31 oversees the activities of Local 2645.
In February 2000, Kirsch filed with Local 2645 grievances against her employer challenging disciplinary actions that she claimed were improper. Although Kirsch requested that Local 2645 process the grievances through the third step, the Local and AFSCME Council 31 withdrew all of her grievances in June 2000. The same has occurred with respect to several grievances that Kirsch filed after June 2000. Kirsch did not consent to any of the withdrawals. She has sued Local 2645 and Council 31 for breaching their duty of fair representation. Defendants have moved to dismiss for lack of subject matter jurisdiction.
Ordinarily a plaintiff in a duty of fair representation case sues both her employer and her union. In such a "hybrid suit," the plaintiff alleges that her employer breached the collective bargaining agreement and that the union failed in its duty of fair representation in its challenge to the employer's actions. See generally DelCostello v. International Brotherhood of Teamsters, 462 U.s. 151, 163-65 (1983). Kirsch has elected not to sue her employer — a course left open to her by DelCostello, see id. at 165 — but this does not relieve her of the requirement of proving that the employer breached the collective bargaining agreement. Id. at 165.
The likely reason why Kirsch did not sue IDES is that the Labor Management Relations Act, which provides the basis for a suit against the employer, does not cover state government employers. See 29 U.S.C. § 152(2) (definition of "employer"); NAACP, Detroit Branch v. Detroit Police Officers Association, 821 F.2d 328, 331-32 (6th Cir. 1982). Perhaps Kirsch believed that omitting IDES as a defendant would make its identity a non-issue. But DelCostello says the contrary: the Court stated that the case the employee must prove is the same whether he sues just the employer, just the union, or both of them. DelCostello, 462 U.S. at 165. Put another way, an employee's breach of fair representation claim against her union is "inextricably interdependent" with a claim against her employer for breach of the collective bargaining agreement. McLeod v. Arrow Marine Transport, Inc., 258 F.3d 608, 613 (7th Cir. 2001). Though the authority on this precise issue appears sparse, we think that it follows from the fact that a state-government employee cannot sue her employer under the LMRA for breach of a collective bargaining agreement that she cannot sue her union for failing to represent her adequately in her claim against the employer for breach of the agreement. See Bailey v. Johnson, No. 90 C 1795, 1990 WL 77508, at *2 (N.D. Ill. May 30, 1990); Epstein v. County of Sonoma, No. 90-3514, 1991 U.S. Dist. LEXIS 4935, at *5-6 (N.D. Cal. Apr. 1, 1991). See generally Jackson v. Temple University, 721 F.2d 931, 933 (3d Cir. 1983) (holding that subject matter jurisdiction was lacking over hybrid suit against union and state government employer).
Epstein suggests that a proper claim might be made against a union composed of both public and private employees. We need not address this issue, as there is no indication that Local 2645 or Council 31 represents any privately employed persons.