Duffy and Kiley, Circuit Judges, and Major, Senior Circuit Judge.
Local Union No. 51, IBEW (Union) brought this suit in the District Court under Section 301, Labor Management Relations Act, 29 U.S.C. § 185, seeking a decree ordering Illinois Power Company to perform its obligations under Articles II and IV of the Collective Bargaining Agreement between the parties. Articles II and IV set forth a grievance-arbitration procedure.
On April 17, 1965, the District Court filed its opinion and on May 3, 1965, entered its order granting the Union's motion for a summary judgment, dismissing the Company's motion and directing the Company to accept and process the grievance, and to proceed with arbitration.
The Union's grievance alleged the Company had reclassified hourly-paid employees within the bargaining unit to supervisory employees outside the unit; that these newly classified supervisors continued to spend part of their time doing bargaining unit work which they previously had done as hourly-paid employees.
The grievance alleged that "the daily performance and continued performance by the control room supervisors of work regularly performed by employees of the bargaining unit constitutes an ever-continuing violation of Section 4, Article I, of the current labor agreement which expressly prohibits supervisors from performing bargaining unit work."
Defendant is a public utility engaged in the production and distribution of gas and electrical power in the state of Illinois. It has four major power generating stations, one of which is located at Wood River, Illinois. Since 1950, the Company has had a collective bargaining agreement with the Union covering, among other things, employees in certain designated classifications in its power generating stations.
In September 1951, the Company started a large expansion program at its Wood River plant. The principal purpose of the expansion was to add an additional power generating unit. The estimated cost of the expansion was $40,000,000. The new unit, which was to become operative in the fall of 1964, was four times larger than the combined size of the existing four units. Its construction required erection of a new centralized control room that would house all the controls for the new generating unit as well as certain other controls for the entire plant.
In August 1963, before the new control room became operative, Local 51 requested a meeting with the Company to discuss certain contract modifications suggested by the Union, in connection with anticipated changes resulting from the expansion program. The Company and the Union met. The Company stated it planned to create the position of "control room supervisor." These supervisors would be in complete charge of the new generating unit and would not be members of the existing bargaining unit.
After several meetings, the Company, on January 31, 1964, definitely stated its position that the person in charge of the new generating unit would be classified as a control room supervisor, and that he would not be included in the bargaining unit. The Company announced it would not bargain with the Union concerning that classification but would include it within the supervisory schedule to be paid on a monthly basis.
On February 5, 1964, the Union filed charges with the National Labor Relations Board alleging the Company had refused to bargain in good faith. A complaint was issued and a hearing was held. The trial examiner issued his decision on October 28, 1964, finding that Illinois Power Company had, in fact, notified and consulted with Local 51 concerning the reclassification of employees to the position of control room supervisor. The examiner also held "the control room supervisors in question are supervisors within the meaning of the Act and as such are not part of the bargaining unit." The trial examiner recommended dismissal of the complaint in its entirety. Exceptions were filed with the Board by the general counsel and by Local 51 as the charging party.
On November 23, 1965, after the briefs in the instant appeal had been filed, but several days prior to oral argument, the Labor Board rendered a decision wherein it stated -- "The sole issue presented here is whether respondent's newly created positions of control room supervisor are supervisory within the meaning of Section 2(11) of the Act. We agree with the trial examiner that such positions, which involve approximately five individuals, are supervisory, and that Respondent's refusal to bargain with the Union on behalf of such individuals was therefore not violative of Section 8 (a)(5) of the Act."
It was not until November 6, 1964 -- nine days after the trial examiner's decision -- that Local 51 first filed its grievance with the Company alleging that Illinois Power had unilaterally reclassified certain employees known as control room supervisors, and in so doing, had placed them outside the bargaining unit.
The Company refused to accept the grievance on two grounds -- 1) the issues raised by the grievance were then pending before the National Labor Relations Board, and 2) the Union's right to employ the grievance and arbitration procedure had been waived, as the purported grievance had not ...