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Local Union 134, Ibew v. Cta

OPINION FILED JANUARY 5, 1979.

LOCAL UNION 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, PLAINTIFF-APPELLEE,

v.

CHICAGO TRANSIT AUTHORITY, DEFENDANT. — (DISTRICT 8, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN COHEN, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant, District 8, International Association of Machinists and Aerospace Workers, AFL-CIO (IAM), appeals from portions of an order which (1) vacated a favorable award entered in an arbitration between IAM and defendant Chicago Transit Authority (CTA) holding that certain work was improperly contracted by CTA to members of plaintiff, Local Union 134, International Brotherhood of Electrical Workers, AFL-CIO (IBEW); and (2) directed CTA to specifically perform its contract with IBEW under which the disputed work was assigned to electricians represented by IBEW. IAM contends that the trial court's order was erroneous on one or more of the following grounds: (1) IBEW lacked standing to seek vacation of the arbitration award; (2) IBEW knew of the arbitration while it was pending yet took no action and therefore cannot now be heard to complain of the award; (3) the trial court erred in concluding that the arbitrator exceeded his authority in making the award; and (4) the trial court improperly considered the merits of the arbitration award.

This controversy began in January 1974, when CTA, the employer in this case, determined that service work on its escalators which was previously performed by outside contractors would be assigned to in-house employees. At this time, the 1971 collective bargaining agreements of CTA's mechanical and electrical employees, who were represented by IAM and IBEW respectively, were in effect. Because the escalator work had been previously handled by outside firms, neither of these agreements specifically referred to such work.

On January 25, 1974, CTA and IBEW reached an agreement in which the newly available escalator work was assigned to in-house electrical workers. IAM objected to the assignment and instituted a proceeding under the AFL-CIO Internal Disputes Plan before an impartial umpire, charging that some of the escalator work was covered by an established work relationship between IAM and CTA and therefore should have been granted to its members. The umpire held that because the dispute involved the interpretation and enforcement of the collective bargaining agreements, it was required to be resolved under contractual grievance procedures and not under the Internal Disputes Plan.

IAM accordingly filed a grievance with CTA. At about this same time, IAM and IBEW were negotiating their 1974 contracts with CTA, and IAM pressed its claim to the escalator work during these negotiations as well. IAM was unsuccessful, however, and the CTA awarded the escalator service jobs to the electricians in the 1974 IBEW contract. IAM nonetheless continued with its grievance, claiming that the assignment of the jobs to IBEW violated its 1971 collective bargaining agreement. Eventually, IAM and CTA chose an arbitrator and scheduled a hearing. After the arbitrator had been chosen, an attorney for CTA verbally informed IBEW attorneys of the pending hearing, stating "you might have an interest in these proceedings." He also suggested that IBEW might seek to enjoin the arbitration, but IBEW chose not to do either.

On October 7, 1976, the arbitration hearing was held with only CTA and IAM participating. The arbitrator found that the grant of all escalator work to IBEW violated IAM's collective bargaining agreement and, in his award, ordered that IAM and CTA engage in negotiations for the purpose of establishing composite escalator work crews that would contain IAM members. Such negotiations were conducted, but the parties were unable to reach an agreement. The arbitrator thus entered a second award on July 8, 1977, which required composite crews of one electrician and one machinist and, if necessary, another machinist.

On July 12, 1977, plaintiff IBEW brought this suit against defendant CTA seeking an order requiring CTA to specifically perform its 1974 contract with IBEW which granted the escalator work to it. IAM intervened as a defendant and counterclaimed against CTA, alleging that its contract with CTA was violated by the assignment of escalator work to IBEW and requesting an order requiring CTA to specifically perform that contract. CTA also filed a counterclaim against IAM and IBEW, essentially requesting the court to determine how the jobs should be assigned to restrain the unions from seeking further arbitration of the matter and to hold CTA harmless from any liability arising from the dispute. Plaintiff IBEW then filed an amended complaint additionally seeking (1) vacation of the arbitration award, pursuant to section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1977, ch. 10, par. 112) on the ground that the arbitrator exceeded his authority in ordering a composite crew; and (2) an order directing CTA, IAM, and IBEW to engage in tripartite arbitration of the work assignment dispute.

After a hearing, the trial court entered an order requiring that CTA specifically perform its 1974 contract with IBEW; that IAM's counterclaim be dismissed; that IBEW's request for tripartite arbitration be denied; and that the arbitrator's award be vacated. Defendant IAM appeals from that order.

OPINION

• 1 Defendant IAM's contentions on appeal all concern the trial court's decisions regarding the arbitration award. We feel, however, that these questions have been rendered moot by IAM's failure to raise as an issue in its brief the propriety of that part of the trial court's order directing CTA to specifically perform its contract with IBEW. By its failure to contend that the order for specific performance was erroneous, IAM has waived any argument on that point under Supreme Court Rule 341(e)(7). (Ill. Rev. Stat. 1977, ch. 110A, par. 341(e)(7).) Thus, there no longer exists any question as to the assignment of the escalator work because specific enforcement of the contract necessarily requires that the escalator work be performed by IBEW members. Since IAM has not objected to the specific performance order and hence the performance of the escalator work by IBEW, the question of whether the arbitrator's award was properly vacated is moot because there now exists no actual controversy as to job assignments. (Chicago City Bank & Trust Co. v. Board of Education (1944), 386 Ill. 508, 519, 54 N.E.2d 498, 503, cert. denied sub nom. Hutchinson v. Board of Education (1944), 323 U.S. 734, 89 L.Ed. 588, 65 S.Ct. 70; People v. Dawson (1972), 5 Ill. App.3d 975, 976, 284 N.E.2d 391, 392; Harney v. Cahill (1965), 57 Ill. App.2d 1, 9, 206 N.E.2d 500, 505.) Accordingly, we would be justified in dismissing this appeal on the basis of mootness alone. In re Mullins (1975), 35 Ill. App.3d 47, 341 N.E.2d 140; Hazdra Homes, Inc. v. County of Du Page (1975), 27 Ill. App.3d 685, 326 N.E.2d 561; Hill v. Murphy (1973), 14 Ill. App.3d 668, 303 N.E.2d 208.

• 2 In any event, however, we feel that the trial court properly vacated the award because the arbitrator exceeded his authority in ordering a composite crew. Initially, it should be noted that plaintiff IBEW sought to vacate the award under section 12(a)(3) of the Uniform Arbitration Act, which provides:

"(a) Upon application of a party, the court shall vacate an award where:

(3) The arbitrators exceeded their powers." (Ill. Rev. Stat. 1977, ch. 10, par. 112(a)(3).)

However, such ground for vacatur is inapplicable in cases, such as the one at bar, in which the award was entered as a result of an arbitration agreement embodied in a collective ...


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