there is no other Agreement or understanding, either oral or written.” (Pl.’s Appx. in Support, Ex.
1 at 72; Pl.’s Appx. in Support, Ex. 3 at 79.)

In January and February of 2002, Local 150 filed two grievances alleging that MJ violated
provisions of the IBA. After progressing through steps one and two of the grievance process without
resolving the grievances, Local 150 requested a hearing before the JGC. On April 23, 2002, MJ and
Local 150 appeared before the JGC, which members were comprised of five union representatives
appointed by Local 150 and five employer representatives appointed by MARBA. Both sides
presented arguments to the JGC. After MJ raised an issue regarding the JGC’s jurisdiction to hear
the grievances, the committee took the matters under advisement and sent a letter to the parties
stating that the hearing would be “continued to the next session of the Joint Grievance Committee
pending further investigation of the jurisdictional issue by the employer representatives of the
Committee.” (PI.’s Appx. in Support, Ex. 14.)

On May 31, 2002, MARBA chairman David DiPaolo sent a letter to Local 150 stating that:

MARBA’s representatives on the Joint Grievance Committee will participate in -

grievances filed by or against contractors who are members of a MARBA member

association. Non-member contractors who have grievances filed by or against them

will be required to pay an administration fee of Five Hundred Dollars ($500.00)

payable to the MARBA Joint Grievance Committee administrative account prior to

the scheduling of a hearing before the MARBA-Local 150 Joint Grievance

Committee. The MARBA members of the Joint Grievance Committee will not hear

grievances involving non-members who have not paid the administrative fee.

(Def.’s Appx. in Support, Ex. P.) After this notice, Local 150 negotiated with another employer
association, Excavators, Inc., to provide employer representatives who would not impose a fee for

non-MARBA member grievances for a JGC. On July 10, 2002, a JGC comprised of five union

representatives appointed by Local 150 and two employer representatives appointed by Excavators,


Further, the awards are unenforceable because, although the HHUA Joint Committee had the
authority “to resolve grievances arising under this Agreement” (PI.’s Appx. in Support, Ex. 3 at 43
(emphasis added)), ite., the Excavators HHUA, the HHUA Joint Committee’s awards are based
exclusively on its findings that MJ violated the IBA (1d,, Ex. 9). As made clear by the language of
the Excavators HHUA, the HHUA Joint Committee had no authority to interpret the IBA and resolve
disputes arising under the IBA. (See also id,, Ex. 3 at 42 (defining “grievance” as “any claim or
dispute involving an interpretation or application of the Agreement by an employee, or an Employer,
or the Union, or the Association that one of the other of the aforesaid persons or organization is
violating or has violated this Agreement.”) (emphasis added).) Therefore, because the HHUA Joint
Committee exceeded its contractually-delegated authority in finding MJ in violation of the IBA, a
CBA the committee was not empowered to interpret, the awards are unenforceable and must be
vacated.

Local 150 asks this court to consider the past practices with respect to the JGC. Local 150
attaches an affidavit from Local 150 recording-corresponding secretary Steven Cisco that states that
historically the JGC has heard grievances arising under the IBA and Excavators HHUA. (Def.’s
Appx. in Support, Ex. J at 74.) The zipper clauses of both the IBA and Excavators HHUA make
clear that the written agreements “represent[] the entire Agreement of the parties, it being understood
that there is no other Agreement or understanding, either oral or written.” (Pl.’s Appx. in Support,
Ex. 1 at 72; Pl.’s Appx. in Support, Ex. 3 at 79.) As discussed above, the written CBAs
unambiguously create a system whereby the JGCs established under each CBA only can interpret
and adjudicate grievances arising under their respective CBA. Both the IBA and Excavators HHUA

explicitly limit the authority of their JGCs “to resolve grievances arising under this Agreement”


ANALYSIS

Initially, Local 150 argues that this court cannot decide the issue at hand because MJ was
required to present its procedural arbitrability challenge to the JGC directly. This court’s disagrees
with Local 150’s characterization of the arbitrability question. MJ is not challenging the
composition of the JGC or any other procedural matter; rather, it is challenging the jurisdiction of
the JGC that rendered an award against it.’ In fact, prior to the July 10, 2002, hearing, MJ objected
to the HHUA Joint Committee’s jurisdiction over it. (P].’s Appx. in Support, Ex. F.) The Supreme
Court has made clear that courts resolve questions of arbitrability, such as a committee’s jurisdiction
over a party to render a binding award against it. Howsam v. Dean Witter Reynolds, Inc,, 537 U.S.
79, 123 S. Ct. 588, 591 (2002) (“The question whether the parties have submitted a particular dispute
to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination [u)nless the
parties clearly and unmistakably provide otherwise.”” (quoting AT&T Techs,, Inc. v.
Communications Workers, 475 U.S. 643, 649 (1986)) (emphasis in original)); see also IBEW Local
#134 v, Chicago & N.E. Ill. Dist. Council of Carpenters, 149 F. Supp. 2d 452, 456-58 (N.D. Ill.
2001) (finding that courts determine whether a grievance committee has jurisdiction over a given

dispute). This court is obligated to examine independently the issue regarding the JGC’s jurisdiction

‘ For clarity, and to resolve an issue of great contention between the parties, this court
agrees with MJ’s reading and interpretation of the IBA and Excavators HHUA. As stated above,
the IBA and Excavators HHUA each refer to a “Joint Grievance Committee.” Local 150 argues
that the JGC established by each CBA is actually the same committee, with the power to resolve
disputes arising under both CBAs. MJ, conversely, contends that there are two separate
committees, each constituted pursuant to each CBA. As will be explained in the text below, this
court finds that two separate grievances committees are involved. Therefore, this court adopts
MJ’s nomenclature of “MARBA Joint Committee” to refer to the JGC established by the IBA
and the “HHUA Joint Committee” to refer to the JGC established pursuant to the Excavators
HHUA.



Inc. heard the grievances against MJ, which was not present at the hearing. MJ objected to this
JGC’s jurisdiction over it. This JGC proceeded in MJ’s absence and sustained Local 150’s
grievances, finding that MJ had violated Article I, Section 8 and Article II, Section 7 of the IBA and
issuing two awards in favor of Local 150 and against MJ of $140, 617.85 and $118, 995.36 in lost
wages and benefits. MJ then filed this lawsuit seeking a declaration that these awards are
unenforceable. Local 150 counterclaimed to enforce the awards.
STANDARD OF REVIEW

Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the evidence of the
nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant’s favor.
Anderson v, Liberty Lobby, Inc., 477 U.S, 242, 255 (1986). This court’s function is not to weigh
the evidence and determine the truth of the matter, but to determine whether there is a genuine issue
for trial. A party who bears the burden of proof on a particular issue, however, may not rest on its
pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine
issue of material fact that requires trial. Celotex Corp, v. Catrett, 477 U.S. 317, 324 (1986). Itis not
the function of this court to scour the record in search of evidence to defeat a motion for summary
judgment; the nonmoving party must identify with reasonable particularity the evidence upon which
that party relies. Bombard v, Fort Wayne Newspapers, Inc,, 92 F.3d 560, 562 (7th Cir. 1996). The

evidence relied upon must be competent evidence of a type otherwise admissible at trial. Id,



members to the JGC. Thus, because the JGC that found MJ had violated the IBA consisted of
members representing employers other than MARBA members, it had no power over MJ. See RJ.
Distributing Co. v, Teamsters, Chauffeurs & Helpers Local #627, 771 F.2d 211,214 (7th Cir. 1985)
(holding that “only disputes between parties to the agreement, that is, the signatory companies and
the Union in its capacity as representative of their employees, are arbitrable under the agreement.”).

Moreover, the evidence in this case shows that, as MJ argues, two separate committees are,
and must be, involved. First, the JGC convened on April 23, 2002, was co-chaired by employer
representatives John Vignocchi and David Rock, of MARBA. (Pl.’s Appx. in Support, Ex. 4D.)
However, the JGC which met on July 10, 2002, was co-chaired by employer representative Dave
Snelton, of Excavators, Inc. (Pl.’s Appx. in Support, Ex. 9.) Second, both committees had different
secretaries. (Pl.’s Appx. in Support, Ex. 4D & 9.) Third, in his letter to Local 150, MARBA
chairman David DiPaolo, referred to the MARBA Joint Grievance Committee.’ (Def.’s Appx. in
Support, Ex P (emphasis added).) Fourth, the MARBA Joint Committee of April 23, 2002, never
re-convened to adjudicate the merits of the grievance. Local 150 convened a new committee
composed of employer members who were totally separate from the MARBA Joint Committee.
(PL.’s Appx. in Support, Ex. 12.) These undisputed facts, taken together, demonstrate that two

committees, not one, as Local 150 contends, were involved in this case.

‘If Local 150 was concerned with the unilaterally imposed $500.00 fee for grievances
involving non-MARBA members, such as MJ, it should have taken this issue up with MARBA.
In fact, it appears that MARBA would hear the two grievances at issue in this case without
payment of the $500.00 fee. (PI.’s Appx. in Support, Ex. 5C.) Local 150 did not have the
authority simply to press its grievances against MJ to a committee without power over MJ or the
TBA.


MinuteyPrder Fe (06/97)
/ United States District Court, Northern District of Illinois

ve f Assigned Jud; Sitting Judge if Oth
or Magistrate Judge James F. Holderman than Astigaed Sudge
CASE NUMBER 02 C 6541 DATE July 9, 2003
CASE M.J. ELECTRIC INC vs. INTERNATIONAL UNION OF OPERATING ENGINEERS
TITLE LOCAL 150
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
@) Qo Answer brief to motion due . Reply to answer brief due. .
4) o Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(9) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) ia} Trial[set for/re-set for] on at
(8) oOo [Bench/Jury trial] [Hearing] held/continued to at
(9) a} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) O)Local Rule 41.1 OFRCP41(a)(1) OFRCP41(a)(2).
qo) [Other docket entry] Pursuant to Memorandum Opinion and Order entered this day, plaintiff’s
motion for summary judgment is granted and defendant Local 150's motion for summary judgment is
denied. The July 10, 2002, awards against plaintiff are declared null, void, and unenforceable. This
action is dismissed in its entirety. Any pending motions are moot.
dl) a {For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court,
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Notices mailed by judge's staff. J a) HN) Zz WW.
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313 (2d College ed. 1982). Moreover, Local 150 listed the five union members as being present
when the grievance hearing or meeting identified in the complaint in this case, i.e., the two
grievances at issue, were conducted. Local 150 cannot now argue that three of the members were
not present at, i.e., not a part of, the July 10, 2002, grievances hearings involving MJ. Finally, Local
150, by failing to comply with the Local Rules of the Northern District of Illinois, has admitted that
the July 10, 2002, JGC consisted of two employer representatives and five union representatives.
Inresponse to MJ’s statement of facts paragraph 54, Local 150 states that it denies the paragraph but
fails to cite to any factual record. Local Rule 56.1 requires that in the case of a disagreement with
the movant’s facts, the opposing party must cite to the specific section of the factual record
establishing a dispute of fact. Local 150’s general denial is insufficient, and the composition of the
JGC is thus deemed admitted. Much v. Penn-America Ins, Co,, 2002 WL 226867 *2 n.2 (N.D. Il.
Feb. 14, 2002) (“The Court will not consider unsupported statements of fact or general ‘denials’ that
do not contain references to the factual record, as required by Local Rule 56.1(3). It is deemed as
admitted all 56.1 responses which fall into this category.” (citation omitted)).*

The plain language of the IBA and Excavators HHUA requires that grievances involving the
IBA be submitted to the MARBA Joint Committee only. Local 150 presented grievances to a
committee, the HHUA Joint Committee, that did not consist of an equal number of employer
representatives appointed by MARBA and union representatives and exceeded the scope of its

contractual authority by issuing awards based on a CBA, the IBA, that it had no authority to

* This court also has deemed admitted other paragraphs where Local 150 has failed to
comply with the Local Rules and has not cited to the record in attempting to dispute MJ’s
Statement of Facts. (Def.’s Resp. to Pl.’s Stmt. of Facts ff 47, 54, 61, 63.) These relevant facts
are included in this court’s Statement of Facts above.

11



(PL.’s Appx. in Support, Ex. 1 at 8-9; Pl.’s Appx. in Support, Ex. 3 at 43 (emphasis added)), i.e., the
MARBA Joint Committee can resolve grievances under the IBA, and the HHUA Joint Committee
has the authority to resolve grievances arising under the Excavators HHUA. The zipper clause
prohibits evidence of some other oral agreement that gives the JGC authority over both CBAs that
is inconsistent with the unambiguous language of the IBA and Excavators HHUA.”

Finally, the HHUA Joint Committee which met on July 10, 2002, did not, contrary to the IBA
and Excavators HHUA, “consist of an equal number of members representing Employers and the
Union.” (P1.’s Appx. in Support, Ex. 1 at 9; Pl.’s Appx. in Support, Ex. 3 at 43-44.) In response to
MJ's first set of interrogatories, Local 150 identified five union representatives and two employer
representatives “who were present at a hearing or meeting conducted on or about July 10, 2002
regarding the grievances identified in paragraphs 20-21 of the Complaint ....” (Pl.’s Appx. in
Support, Ex. 12 (emphasis added).) Local 150 attempts to explain its response away by arguing that
only two employer representatives and two union representatives voted on the grievances and the
other union members did not participate. (Def.’s Response at 14-15.) This argument flies in the face
of the plain language of the CBAs and Local 150’s answers to interrogatories. The CBAs require
that the JGC “consist” of an equal number of employer and union representatives, not that an equal
number of employer and union representatives vote on the grievance. “Consist” is defined as “[t]o

be made up or composed” and does not require voting authority, AMERICAN HERITAGE DICTIONARY

7 As the Seventh Circuit has made clear in precedent affirming this court, such oral
evidence of past practices also is prohibited by the parol evidence rule. Brooklyn Bagel Boys,
frigerated Dough Prods., Inc., 212 F.3d 373, 380 (7th Cir. 2000) (“[T]he
parol evidence rule generally forbids the use in evidence of a prior or contemporaneous
agreement or terms not included in the Contract. ... Notwithstanding the parol evidence rule,
extrinsic evidence can be admitted to discover the parties’ genuine intent when a contract is
ambiguous... .”).

10



over MJ. Consequently, this court has jurisdiction to determine whether the HHUA Joint Committee
had jurisdiction to render binding awards against MJ for violations of the IBA.

Based on the plain language of the IBA and Excavators HHUA, as well as past practices,
this court is convinced that two separate committees were involved. Because MJ was not a signatory
to, nor in any other way bound by, the Excavators HHUA,’ the HHUA Joint Committee did not have
the power to decide that MJ violated the IBA, a CBA the HHUA Joint Committee had no authority
to interpret, and render an award in Local 150’s favor. For the reasons stated below, this court
rejects Local 150’s argument that the JGC is one committee empowered to interpret both the IBA
and the Excavators HHUA.

The IBA defines “Employer” as “present and future members of [MARBA’s] Member
Associations, and the individual members thereof individually and their successors and assigns . .
..” (Pl.’s Appx. in Support, Ex, 1 at 1.) The IBA then goes on to state that the JGC “shall consist
ofan equal number of members representing Employers and the Union.” (1d, at 9 (emphasis added),)
Local 150 states in its response to MJ’s second set of interrogatories that because the JGC that
rendered an award in Local 150’s favor on July 10, 2002, consisted of members appointed by an
employer association, namely Excavators, Inc., that JGC comported with the IBA. (PI.’s Appx. in
Support, Ex. 13,1.) Local 150’s reading of the IBA belies logic, not to mention the plain language
of the agreement. “Employers” in Article II clearly is a term of art defined in the IBA Introduction
clause quoted above. “Employers” in this context refers to the employer members of MARBA, not

any entity that employs workers, Under Local 150’s reading, any employer association could appoint

5 The parties agree that MJ was not in any way bound by the Excavators HHUA. (Def.’s
Resp. to Pl.’s Stmt. of Facts | 16.) Therefore, any grievance committee established pursuant to
the Excavators HHUA has no jurisdictional power over MJ.

7



MJ has not executed nor is it a signatory to any memorandum of agreement that adopts the
Excavators HHUA. Both agreements have similar terms and call for a Joint Grievance Committee
(“IGC”) to resolve grievances under the agreements.

The IBA defines a “grievance” as “any claim or dispute involving an interpretation or
application of the Agreement by an employee, or an Employer, or the Union, or the Association that

, one or the other of the aforesaid persons or organization is violating or had violated this Agreement.”
(Pl.’s Appx. in Support, Ex. 1 at 7.) The IBA goes on to state that “[t]he Union and Association
have together created a Joint Grievance Committee to resolve grievances arising under this
Agreement. The committee shall consist of an equal number of members representing Employers
and the Union.” (1d, at 8-9.)

The Excavators HHUA defines a “grievance” as “any claim or dispute involving an
interpretation or application of the Agreement by an employee, or an Employer, or the Union, or the
Association that one of the other of the aforesaid persons or organization is violating or has violated
this Agreement.” (P1.’s Appx. in Support, Ex. 3 at 42.) At step three of the grievance procedure,
like the IBA, “[tJhe Union and Association have together created a Joint Grievance Committee to
resolve grievances arising under this Agreement. This Committee shall consist of an equal number
of members representing Employers and the Union.” (1d, at 43-44.)

The IBA and the Excavators HHUA each contains an integration or “zipper” clause stating,

that the written agreement “represents the entire Agreement of the parties, it being understood that

and Excavators HHUA are the same agreements and refers to them as the Illinois Heavy and
Highway and Underground Agreement (“IHHUA”). This distinction makes no difference in the
outcome of this case, as the bottom line is that MJ is not bound by any HHUA. For purposes of
this opinion, Excavators HHUA and IHHUA are synonymous, and this court will use
“Excavators HHUA” to refer to these agreements.

3


STATEMENT OF FACTS'

Plaintiff MJ is an electrical contractor that performs electrical transmission and substation
work. Defendant Local 150 is a labor organization representing heavy equipment operators in
Illinois and parts of Indiana and Iowa. The issues in this case arise out of a job MJ subcontracted
to perform on an electrical substation in Zion, Illinois. In early 2002, Local 150 filed two grievances
against MJ alleging that MJ had violated the hiring hall and assignment of work provisions of the
Ilinois Building Agreement (“IBA”), one of two relevant collective bargaining agreements (“CBA”)
in this case.

The IBA was executed formally between Local 150 and the Mid-American Regional
Bargaining Association (“MARBA”) on behalf of its members, employer associations representing
contractor-employers in the Chicago area. MJ is not a member of MARBA; however, MJ is a
signatory to a memorandum of agreement that adopts the IBA.? The second CBA involved in this
case is a separate, independent agreement executed between Local 150 and Excavators, Inc., an
employer association that is not a member of the MARBA and is not a party to the IBA, known as

the Excavators/Local 150 Heavy and Highway and Underground Agreement (“Excavators HHUA”).?

' The Statement of Facts is derived from MJ’s Local Rule 56.1 Statement of Uncontested
Facts and Local 150's Response thereto and from Local 150’s Statement of Uncontested Facts
and MJ’s Response thereto.

? In opposition to Local 150’s motion for summary judgment, MJ argues that it is not
bound by the IBA. However, even if this court accepts Local 150’s contention that MJ is bound
by the IBA (and MJ admits as much for purposes of its motion for summary judgment (PI.’s
Stmt. of Facts { 14)), MJ still is entitled to summary judgment. Therefore, for purposes of this
decision, it is undisputed that MJ is bound by the IBA.

3 The parties dispute whether the MARBA/Local 150 Heavy and Highway and
Underground Agreement is a separate agreement from the Excavators HHUA or simply a
different characterization of the Excavators HHUA. Local 150 argues that the MARBA HHUA

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
M.J. Electric, Inc., a Delaware corporation, )
)
Plaintiff, )
)
v. >) No. 02 C 6541

)
International Union of Operating Engineers, )
Local 150, an unincorporated association, )
)
Defendant. )

) DOCKETED

MEMO! IM OPINION AND ORDE YUL 1 0 2093

JAMES F. HOLDERMAN, District Judge:

On September 13, 2002, M.J. Electric, Inc. (“MJ”) filed a declaratory judgment action against
International Union of Operating Engineers, Local 150 (“Local 150”) seeking a declaration that two
grievance awards that Local 150 obtained against MJ for alleged violations ofa collective bargaining
agreement are unenforceable and void. On May 29, 2003, pursuant to Federal Rule of Civil
Procedure 56, MJ filed a motion for summary judgment. Local 150, on June 2, 2003, filed a cross-
motion for summary judgment. Both motions have been fully briefed by counsel. For the reasons

explained more fully below, MJ’s motion is granted, and Local 150’s motion is denied.

co



interpret. Because the HHUA Joint Committee was not established pursuant to the IBA and thus
lacked any authority to interpret the IBA or to exercise jurisdiction over MJ, which is not a signatory
to the Excavators HHUA, the awards are unenforceable. Therefore, this court must declare that the
two awards rendered on July 10, 2002, by the HHUA Joint Committee are null, void, and otherwise
unenforceable.
CONCLUSION

For the above stated reasons, plaintiff M.J. Electric’s motion for summary judgment is
granted, and defendant Local 150’s motion for summary judgment is denied.? The July 10, 2002,
awards against plaintiff M.J. Electric are declared null, void, and unenforceable. This case is

dismissed in its entirety. Any pending motions are moot."”

oP Aedeane

JAMES F, HOLDERMAN
United States District Judge

EN

DATE: July 9, 2003

* In considering Local 150’s motion for summary judgment, even if this court found that
MJ, as a successor, is bound by the IBA and furthermore that MJ violated the IBA, Local 150
would not be entitled to judgment as a matter of law. The HHUA Joint Committee did not have
the power to hear and decide the grievances brought pursuant to the IBA. Accordingly, Local
150’s motion for summary judgment must be denied.

On June 27, 2003, both MJ and Local 150 filed motions to strike. In crafting the
statement of undisputed facts and in considering the evidence in this case, this court has
considered only admissible evidence. Thus, both motions to strike are moot.

12