On cross-motions for summary judgment, each movant must individually satisfy the
requirements of Rule 56. Proviso Association of Retarded Citizens v. Village of Westchester, 914

F. Supp. 1555, 1560(N.D. ILL. 1996); Chicago Truck Drivers, Hel pers and Warehouse Workers Union

(nd.) Pension Fund v. Kelly, No. 95 C 501, 1996 WL 507258. *3 (N.D. Ill. Sept. 3, 1996). The
traditional standards for summary judgment still apply even though both parties have moved for

summary judgment. Blum vy, Fisher and Fisher, Attorneys at Law, 961 F. Supp. 1218, 1222 (N.D.

11.1997). The court considers each cross-motion separately and draws all reasonable inferences and
resolves all factual uncertainties in favor of the non-moving pa:ty

In this instance the court, is asked to review an arbitrator’s award and either, affirm, vacate,
or remand it for modification. [t is well settled that judicial review ct arbitration awards is extremely

limited. Advance Transp, Co. v. Int’ Bhd of Teamsters, Local No. 710, 973 F.2d 593, 596-597 (7th

Cir. 1996) (citing Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180, 183 (7th Cir. 1985);

United Paperworkers International Union, AFL-CIO vy. Misco, Ine., 484 U.S. 29 (1987); United

Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 596 (1960)).
The Seventh Circuit has set forth the applicable standard of review for arbitration awards as
follows:

An arbitrator is confined to interpretation and application of she collective bargaining
agreement; he does not dispense his own brand of inclustrial justice. He may of
course look for guidance from many sources, yet his award is legitimate only so long
as it draws its essence from the collective bargaining agreement. When the
arbitrator’s words manifest an infidelity to this obligation, courts have no choice but
to refuse enforcement of the award.

Anheuser-Bush, Inc, v. Local Union No, 744, 280 F.3d 1133, 1137 7th Cir. 2002) (quoting Tootsie

Roll Indus., Inc. v. Local Union #1, 832 F.2d 81, 83 (7th Cir. 1987)).

The arbitrator’s decision should not be upset unless it i; arbitrary or capricious or
fails to draw its essence from the collective bargaining contract because it exceeds
the confines of interpreting and applying the contract... . It is only when the
arbitrator must have based his award on some body of thought, or feeling, or policy,
or law that is outside the contract that the award can be said not to “draw its essence
from the collective bargaining agreement.

4



Ii. CONCLUSION
For the foregoing reasons Monee’s motion for summary judgment is denied. Local 150's

cross motion for summary judgment seeking the affirmance of the arbitrator’s award is granted.

IT IS SO ORDERED.
ENTER:

CHARLES RONALD NORSLE, SR., DistricfJudge

DATED:___ a7 L-? _

9



arbitrator found that the grievance was a continuing violation. ln making that determination, the
arbitrator reviewed both parties’ arguments and found Local |50's more persuasive. Monee
contended, just as they have here, that the express language of (ie agreement requires notice within

two weeks of the alleged violation. Since Monee received no notice of their continuing violations,

it argues that they should not be held accountable under the CBA ‘The arbitrator found in favor of
Local 150 on the issue of a continuing violation for two reasons:

First, [Monee] ignore[s] that the fundamental basis for the continuing violation is that
because the conduct complained of has continued once the grievance was filed no
additional action or notice was required of the Union. Sezondly, I find that equity
and fairness have been met by virtue of the language of the Union’s grievance, the
prior history set forth in the opinion of the appellate cout that the Union and the
Employer at one time disputed the use of non-bargaining unit personnel in the past,
the Employer at one time complied with the Union’s demunds that bargaining Unit
employees be used, and the repeat references to these deraands in the appellate court.
Simply put, given the history of the dispute up to Ocioter 1998, the date of the
appellate court’s opinion, it strains credulity to believe that the Employer was not on
notice that the Union continued to demand the use of bargaining unit personnel to
perform bargaining unit work.

(See Def.’s Ex. G pg. 10.)

Monee’s assertion that the arbitrator exceeded his authority are meritless. In making his
decision the arbitrator reviewed the CBA, the particular grievance that was filed, and the Illinois
Appellate Court’s decision. Although it may appear that the arbit-ator has exceeded his power by
going outside the CBA in making his determination by drawitg inferences from the Illinois
Appellate Court’s decision, he has not. An arbitrator may look for guidance from outside sources
as long as his determination is based on the essence of the CBA. -Anheuser-Bush Inc., 280 F.3d at
1137. After reviewing the grievance that Local 150 filed and the CIA, the arbitrator determined that
Monee was on notice of a continuing violation, the failure to use union members on Monee’s various
job sites. The arbitrator’s determination is based on the essence of the CBA, and therefore will not
be disturbed.

Second, Monee asserts that the arbitrator exceeded his authority by not finding Monee’s

attempted cancellation of the CBA, sixty days prior to the expiration date of the term in 1998, as

6



Anheuser-Bush, Inc., 280 F.3d at 1137 (quoting Burkart Randall v, Lodge # 1076, 648 F.2d 462, 465

(7th Cir. 1981) and Ethyl Corp. v. United Steelworkers of Am., 768 F.2d 180, 184-85 (7th Cir.

1985)). “[T]he fact that a court is convinced [the arbitrator] committed serious error does not suffice

to overturn his decision.” Major League Baseball Players Assn: arvey, 532 U.S. 504, 509 (2001)

(quoting Eastern Assoc. Coal Corp. v. United Mine Workers, 53! U.S. 57, 62 (2000)) (internal
quotations omitted). “‘[A]s long as [an honest] arbitrator is even arguably construing or applying
the contract and is acting within the scope of his authority’ the fact that ‘a court is convinced he
committed serious error does not suffice to overturn his decision.’ ’ astern Assoc. Coal Corp., 531

U.S. at 62 (2000) (quoting Paperworkers, 484 U.S. at 38); see also Steelworkers v. Enterprise Wheel

& Car Corp,, 363 U.S. 593, 596 (1960). With these principles in nind, the court now turns to the
parties’ arguments in reviewing the arbitrator’s decision.
B. Reviewing the Arbitrator’s Ruling

Monee challenges the arbitrator's ruling on several grounds: 1) that the arbitrator exceeded
his power by not limiting the Arbitration Proceedings to the si igle grievance which was filed on
November 13, 1993; 2) that the arbitrator exceeded his authori:y by considering matters after
December 1, 1996 the date Monee allegedly cancelled the CBA: and 3) that the arbitrator’s award
of $133,168.00 was excessive based on the CBA and the evidece: presented. (See Pl.’s Mot. for
Summ .J. pg. 2.) Monee previously presented these arguments to the arbitrator, who rejected them.
The court finds none of Monee’s argurnents persuasive, and discussing each.

First, Monee argues that based on the CBA the arbitrator exceeded his authority by viewing
Local 150's grievance as a continuing violation spanning the years 1994 through 2000, as opposed

to a grievance for a single complaint on a single instance. (See F'l.’s Mot. for Summ. J. pg. 7.) The



Paperworkers, 484 U.S. at 38); see also Enterprise Wheel & Car Corp., 363 U.S. at 596. The

arbitrator reviewed the Master Agreement and the Memorandum ot Agreement and construed them
accordingly. The court will not overturn the arbitrator’s decision on this basis.

Finally, Monee argues that the arbitrator’ s award of $133,168.00 was excessive based on the
evidence presented during the arbitration. Again, the arbitrator reviewed all of the evidence before
him and made a determination as to what a proper award would be vor the grievance. The arguments

that Monee are now asserting, are the same as those made before the arbitrator in the post-hearing

briefs, which the arbitrator took into consideration before < ening the award. The arbitrator
reasoned that:
“[i]n Article 6 of their agreement the parties have agreed that landscaping equipment
operators, defined as those who operate the work in question are to receive a specific
hourly rate. More importantly, it does not restrict that hou ‘ly rate only to those rare
periods during which they are working in that fashion.”
(Def.’s Ex. G pg. 13)

“Awards will be vacated only where there is no logical interpretive route between the

collective bargaining agreements and the awards.” Advance rans. Co. v, Local No. 710, 946

F.Supp. 580, 581 (N.D. fl. 1996) (citing Arch of IIL. Div. of Ayogee Coal Corp, v. District 12.

United Mine Workers of Am., 85 F.3d 1289, 1293-94 (7th Cir. 1996)}). “Courts must resolve disputes

in favor of enforcement where there exists any reasonable amount of doubt regarding whether the

award contains such a logical connection.” Advance Trans. Co,, 946 F.Supp. at 581 (citing Jasper,
77¥ .3dat 1028-29). The arbitrator determined the damages by finding that during the seasonal work
periods, the failure to employ a union worker represented a lost work opportunity. The amount of
$133,168.00 represents the lost work opportunity. The court finds ‘hat the award contains a logical

connection to the CBA and therefore will not disturb it. The arbitrator’s ruling stands.



Minute Order Vorm (05/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; arles Sitting Judge if Othe!
or Magistrate Judge Charles R. Norgle than Assigned Judge
CASE NUMBER 01C 571 DATE 9/12/2002
CASE Monee Nursery vs. Int’] Union ol Engineer, Local 150
TITLE

[In the following box (a) indicate the party filing the motion, e.g... plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.}

MOTION:

Cross Motions for Summary Judgment

DOCKET ENTRY:

a) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due.
3) a Answer brief to motion due__. Reply to answer brief due
(4) QO Ruling/Hearing on ____set for _ at
5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at .
¢ el — -—_at___,
(6) Oo Pretrial conference|held/continued to] [set for/re-set for]on_____ set for _at
(7) oO Trial[set for/re-set for]on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at.
(9) ao This case is dismissed [with/without] prejudice and without costs| by, agreement/pursuant to]
COFRCP4(¢m) CO Local Rule 41.1— CFRCP4I(a(1) CO FRCP-4I(a)(2).
ao) [Other docket entry] Before the court is Plaintiff's motion for summary judgment [17-1] and
Defendant’s motion for summary judgment [19-1]. Plaintiffs motion is denied, Defendant’s motion is
granted. It is so ordered.
oo,
oe °

daly [For further detail see order attached to the original minute order. |

No notices required, advised in open court. Document

5 i Number

No notices required. vuamber of notices

Notices mailed by judge’s staff.

Notified counsel by telephone. : EP 17 2002
UV | Docketing to mail notices. a

Jait AO 450 form.

|
j
M |
. . . [pares
Copy to judge/magistrate judge | tins __-|

courtroom
deputy's
initials —
Date/time received in

central Clerk’s Office

mailing deputy initials



effective, thus limiting Monee 's liability to Local 150, Again, the arbitrator was presented with this

assertion and ruled in favor of Local 150. The arbitrator re

wed the language of the CBA,
specifically two different clauses of the CBA pertaining to cancellation. One section was in the
Master Agreement, the other in the Memorandum Agreement. ‘Ihe two sections state respectively:
This agreement shall...continue in full force and effect from year-to-year unless either
party hereto shall notil'y the other party at least sixty (60) days prior to the expiration

date of the term or any extended term of this Agreement of <n intention to...terminate
this Agreement...

and

Either part desiring to...terminate this Memorandum of Agreement must notify the
other in writing at least three (3) calendar months prior to the expiration of the
Master Agreement adopted herein...

(Def.’s Ex. G pg. 3)

Upon reviewing the two agreements the arbitrator determined that Monee had not effectively
cancelled the CBA, within the allotted time period. The arbitrator found that there was no ambiguity
in the two clauses:

[T]he Memorandum of Agreement incorporated by reference the terms of the Master
Agreement (“‘...the parties do hereby mutually agree to se bound by the terms and
conditions of the Master Agreement...as though...incorpor ated herein”) but clearly
and unequivocally created a different, mutually agrecd to, termination provision.
Moreover, since the parties in the Memorandum of Agreement explicitly created a
separate expiration time line, I also disagree with the Eimployer’s assertion that the
Master Agreement must govern because the Memorandura of Agreement did just that
by its clear and unequivocal terms set forth in paragraph ‘i (“Either party desiring
to...terminate this Mernorandum...must notify the other...a1. least three (3) calendar
months prior to the expiration of the Master Agreement adopted herein.”) Thus, | find
that the Employer’s attempt to terminate its contractual obligations set forth in the
Memorandum of agreement and by incorporation the Master Agreement were not
valid.

(See Def.’s Ex. G pg.10).
Again, Monee’s argument that the arbitrator exceeded the scope of the CBA is meritless.
“TA]s long as [an honest] arbitrator is even arguably construing or applying the contract and is

acting within the scope of his authority’ the fact that ‘a court is convinced he committed serious error

does not suffice to overturn his decision.’” Eastern Assoc. Corp., 531 U.S. at 62 (quoting



that Monee did violate the CBA, and awarded Local 150 $133 168.00 for Monee’s continuing
violations.

Monee has now brought suit, attempting to vacate the arbitration award. Monee claims that
the arbitrator abused his discretion by ruling against the manifest weight of the evidence. Their
being no contested factual issues, both parties have filed motions for summary judgment. For the
following reasons, Monee’s motion for summary judgment is denied. Local 150’s motion for
summary judgment is granted.

Il. DISCUSSION
A. Standard of Review

Summary judgment is permissible when “there is no genuine issue as to any material fact and
... the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
nonmoving party cannot rest on the pleadings alone, but must iclentify specific facts, see Cornfield

vy. Consolidated High School District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more

than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT

Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999); see also Shank vy. William R. Hague.
Inc,, 192 F.3d 675, 682 (7th Cir. 1999) (stating that a party opposing summary judgment must
present “what evidence it has that would convince a trier of fact to accept its version of events.”)
A defendant is entitled to put the plaintiff to his proofs and demand a showing of the evidence. See
e.g. Navarro v. Fuji Heavy Industries. Ltd., 117 F.3d 1027, 1030 (7th Cir. 1997). If the plaintiff fails
to come up with the required proof, the defendant is entitled to summary judgment. See id. {t bears

repeating that the plaintiff must present evidence, rather than speculation and conclusions without



In August of 1984, Monee employees were working on a jub site in Matteson, Illinois when
a Local 150 representative asked to see their union cards. When Monee’s employees were unable
to produce union cards the site was shut down for the day. The Local 150 representative went to
Monee’s nursery to speak with the owner in an attempt to get Monee to sign a Collective Bargaining
Agreement (“CBA”) with Local 150. A CBA was signed between the parties” and two of Monee’s
employees joined Local 150. The employees maintained their membership with Local 150 for one
year, after which time their membership was revoked for lapsed dues.

The parties had no further dealings with each other for seven years. In April of 1992, at a
job site in Merrivile Indiana, employees from Monee were approached by a Local 150 representative
who requested to see their union cards. When none of Monee’s employees could produce a union
card, work was stopped at the site. Local 150 agreed to issue a tem porary permit to one of Monee’s
employees, The dues were paid and work resumed.

In 1993, a Local 150 representative again went to a Monze work site and requested to see if
Monee’s employees had union cards. None were produced. Local 150 filed a grievance with Monee
and attempted to arbitrate Local 150's claims pursuant to the CB/\. Monee filed an action in the
Illinois State court in an attempt to enjoin the arbitration, claiming that there was no CBA between
the parties. It was determined that a CBA did exist between the parties. Monee appealed the
decision, but it was affirmed by the Illinois Appellate court. Adter several years of litigating the

question of the existence ofa CBA, the matter was finally sent to an arbitrator. The arbitrator found

? Monee has previously litigated the issue of whether an enforceable CBA was signed
between the parties in Illinois State court. The Illinois State court ruled that there was a CBA
between the parties. The Illinois Appellate court affirmed that «lecision. See 1-97-2619.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF {LLINOIS

EASTERN DIVISION
MONEE NURSERY & )
LANDSCAPE COMPANY, )
)
Plaintiff, )
) No. 01 C0571

v. )

) HONORABLE CHARLES R. NORGLE SR.
)
INTERNATIONAL UNION OF )
ENGINEERS, LOCAL 150 AFL-CIO )
and AMERICAN ARBITRATION )
ASSOCIATION, )
)
Defendants. )

OPINION AND ORDER
Charles R. Norgle, Sr., District Judge

Before the court is Plaintiffs motion for summary judgrient and Defendants’ cross motion
Yor summary judgment brought pursuant to Federal Rule of Civil Procedure 56. For the following
reasons Plaintiff's motion is denied and Defendant’s motion is grented.

I. BACKGROUND '

The relationship between Plaintiff, Monee Nursery & Landscaping Co. (“Monee”), and
Defendant, International Union of Engineers, Local 150 (“Local 150"), starting in 1984, has been
antagonistic. Monee is a landscaping company that grows, sells, and plants various landscaping
items. Local 150 represents individuals who operate heavy ejuipment for construction and
landscaping business in northern Illinois and Indiana and which are signatories to collective

bargaining agreements with the Union.

' All facts are taken from the parties Local Rule 56.1 stateraents and accompanying briefs.
Disputed facts are noted in the text.