Appeal from the Circuit Court of Lake County; the Hon. Robert
K. McQueen, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Plaintiff-union's complaint to compel arbitration (Ill. Rev. Stat. 1981, ch. 10, par. 102) was dismissed by the circuit court of Lake County and the parties' cross-motions for summary judgment were denied. Because the dispute giving rise to the complaint was arbitrable, we reverse and remand for an order granting the relief sought in the complaint.
On January 13, 1983, plaintiffs, International Association of Machinists and Aerospace Workers, District Lodge No. 140, James D. Feight, Ray Holland, David Rumpf and Charles Dalbke (hereinafter union), filed a complaint which sought to enjoin defendants, Cheshire/A Xerox Company and Xerox Corporation (hereinafter company), from refusing to participate in arbitration pursuant to a collective bargaining agreement between the parties. The union alleged that a controversy had arisen out of that agreement, to wit:
"The company notified the union that the finished design of the Ferret Machine has been released to be manufactured in Hot Springs, ARkansas [sic], a right to work state; thereby, depriving Bargaining Unit Employees of work normally performed by them. Such work loss is greatly magnified by already loss [sic] of the machine shop and wire harness work. This methof [sic] of discriminating against the union substantially jeopardizes the status and integrity of the Bargaining unit. This is a violation of the current Collective Bargaining Agreement in particular, Article 1 and Job Descriptions. Specific Adjustment requested: The Company manufacture the finished design of the Ferrest [sic] Machine at Cheshire of Mundelein, Illinois and make the appropriate employees whole."
It was agreed by the parties that the union requested arbitration of this controversy but that the company refused and continues to refuse to submit to arbitration.
The company filed a counterclaim and motions for dismissal of the complaint and for summary judgment on the counterclaim. The union filed motions for dismissal of the counterclaim and for summary judgment on the complaint. Oral argument was made on these motions on April 26, 1983, and the trial court ruled on May 17, 1983. The court found that the Management Rights Article of the collective bargaining agreement, which gave the company the exclusive right "to introduce new or revised production methods or facilities [and] to decide the number and location of its plant and nature and extent of work to be performed therein * * *," was a clear and unambiguous exclusion of the union's grievance from arbitration. The court therefore granted the company's motion to dismiss the complaint while also dismissing the company's counterclaim and denying the cross-motions for summary judgment. In its appeal, the union seeks reversal of the denial of its petition to compel arbitration and an order compelling arbitration.
• 1 For clarification purposes, we first address the scope of this appeal. Because the union now seeks not only reinstatement of its complaint but also the granting of the relief sought by that complaint (i.e., an order compelling arbitration), it is clear that the union appeals from the denial of its motion for summary judgment as well as from the dismissal of its complaint. While the denial of a motion for summary judgment is not ordinarily appealable, such a denial is reviewable where the case is on appeal before the appellate court from a final judgment, there has been no evidentiary hearing or trial, and the party seeking such review has not in any way prevented or avoided such hearing or trial. (Novak v. Insurance Administration Unlimited, Inc. (1980), 91 Ill. App.3d 148, 414 N.E.2d 258; Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App.3d 1031, 402 N.E.2d 352.) Since the dismissal of the complaint is a final judgment properly before this court, we may also properly review the denial of the union's motion for summary judgment.
• 2 The central issue of this appeal is whether the dispute between the parties is an arbitrable one. Subsection (a) of section 2 of the Uniform Arbitration Act provides as follows:
"(a) On application of a party showing an agreement described in Section 1, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied." (Ill. Rev. Stat. 1981, ch. 10, par. 102(a).)
Although the company's motion to dismiss was ostensibly a section 2-619 motion (see Ill. Rev. Stat. 1981, ch. 110, par. 2-619) for involuntary dismissal based upon certain defects or defenses, it more precisely sought the summary determination provided for in the Uniform Arbitration Act. Under that act, the trial court is authorized to determine arbitrability if one of the parties denies it has agreed to arbitrate, as the company does here. (Lehman v. Eugene Matanky & Associates, Inc. (1982), 107 Ill. App.3d 985, 438 N.E.2d 614.) In granting the motion to dismiss, the trial court summarily determined that there was no agreement to arbitrate the dispute alleged.
With regard to the arbitration of dispute, the terms of the collective bargaining agreement are very broad:
"Grievances are defined as any alleged violation of the terms of this Agreement or differences of opinion as to its interpretation, applications or differences of opinion arising out of conditions of employment. Should grievances, as defined above, arise, there shall be no suspension of work and all issues and disputes shall be settled promptly in the manner hereinafter outlined in this Article.
Any grievance which is not settled may be referred to arbitration in accordance with the provisions of Section 4 of this Article." (Emphasis added.)
The complaint alleges a violation of the terms of the agreement. The union alleges that the company's decision to manufacture the Ferret Machine in Arkansas rather than Mundelein violates "Article 1 and Job Descriptions," so as to discriminate against the union. The ...