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Kostecki v. Dominick's Finer Foods, Inc.

Case Date: 09/28/2005
Court: 1st District Appellate
Docket No: 1-04-1624, 1-04-2130 cons. Rel

THIRD DIVISION
SEPTEMBER 28, 2005



1-04-1624)
1-04-2130) Cons.

ROSELLA KOSTECKI, an Illinois Resident, on Behalf
of Herself and All Others Similarly Situated,

                         Plaintiff-Appellant,

          v.

DOMINICK'S FINER FOODS, INC. OF ILLINOIS, an
Illinois Corporation, DOMINICK'S FINER FOODS, INC.,
a Delaware Corporation, and SAFEWAY, INC., a
Delaware Corporation Doing Business as a Foreign
Corporation in Illinois,

                          Defendants-Appellees.

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)		 Appeal from the
Circuit Court of
Cook County.




No. 02 CH 20329



Honorable
Nancy Jo Arnold,
Judge Presiding.



JUSTICE ERICKSON delivered the opinion of the court:

Plaintiff Rosella Kostecki, a member of a labor union, filed a class action complaint against defendants, Dominick's Finer Foods, Inc. of Illinois, her former employer, Dominick's Finer Foods, Inc., and Safeway, Inc., alleging they violated numerous state wage statutes by requiring employees to work "off the clock" without pay, by manipulating time-recording procedures, and by not timely paying employees or providing adequate breaks. Plaintiff appeals from the circuit court's grant of defendants' section 2-619 (735 ILCS 5/2-619 (West 2002)) motion to dismiss her complaint, contending the trial court erred in finding she was required to arbitrate her claims and that their resolution required interpretation of the agreement. Plaintiff also argues that (1) the trial court erred in denying her motion for leave to file a second-amended complaint, (2) the One Day Rest in Seven Act (820 ILCS 140/1 et seq. (West 2002)) provides for an implied private cause of action, (3) the trial court erred in striking her "Motion to Enforce the Unconditional Tender Offer of Settlement," and (4) the trial court should have ruled on her pending motion for class certification before dismissing her complaint. For the reasons that follow, we affirm.

BACKGROUND

Plaintiff was a member of the United Food and Commercial Workers International Union, Local 881 (the Union) and the terms of her employment were covered by a collective bargaining agreement. Article XVI of that agreement provides for how grievances, including those involving wages, shall be filed, pursued, and arbitrated, if necessary. On November 8, 2002, plaintiff, on behalf of herself and all others similarly situated, filed a two-count complaint in the chancery division of the circuit court of Cook County, alleging defendants, by requiring employees to work "off the clock," amounting to overtime without pay, violated the Minimum Wage Law (820 ILCS 105/1et seq. (West 2002)) (Wage Law), which requires time-and-a-half pay for hours worked each week over 40. Plaintiff also alleged defendants violated the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 2002)) (Wage Payment Act), which provides that employees must be paid in the next pay period, unless a collective bargaining agreement provides otherwise, by failing to timely pay overtime and other earnings.

On June 25, 2003, plaintiff filed an "Amended Class Action Complaint," realleging violations of the Wage Law and Wage Payment Act, and adding a third claim that defendants violated the One Day Rest in Seven Act (820 ILCS 140/1 et seq. (West 2002)) by requiring employees to work schedules that did not provide for 24 consecutive hours' rest in every calendar week, and by requiring employees to work without adequate breaks.

On August 15, 2003, defendants filed a motion pursuant to sections 2-619(a)(1) and 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(1), (a)(9) (West 2002)) to dismiss plaintiff's complaint, contending (1) plaintiff's claims are covered by the terms of a collective bargaining agreement, and therefore she must pursue the agreement's grievance and arbitration procedures before pursuing them in court, and that resolution of her claims would require interpretation of the agreement, (2) the One Day Rest in Seven Act does not provide individuals with a private cause of action, and (3) plaintiff's claims had been rendered moot by defendants' settlement offer.(1)

The trial court, on March 5, 2004, granted defendants' motion to dismiss, finding (1) because her claims arose from the collective bargaining agreement, plaintiff was required to exhaust the remedies provided under the agreement, and (2) her claims were preempted because their resolution would require interpretation of the agreement. The court did not address defendants' mootness argument, as defendants, on January 28, 2004, withdrew this contention from their dismissal motion. The court also found it unnecessary to address whether the One Day Rest in Seven Act provided for a private cause of action "because all counts of the [p]laintiff's complaint must be dismissed for her failure to exhaust the remedies available under the collective bargaining agreement."

On April 5, 2004, plaintiff filed a motion to reconsider the dismissal order and for leave to file an amended complaint. Plaintiff's attached proposed second-amended complaint alleged that she had pursued a grievance pursuant to the provisions of the bargaining agreement, but was unsuccessful, and that defendants violated the federal Fair Labor Standards Act of 1938 (29 U.S.C.