Appeal from the Circuit Court of Adams County; the Hon. Dennis
K. Cashman, Judge, presiding.
JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
On October 27, 1983, plaintiff, Lodge No. 822, International Association of Machinists and Aerospace Workers Union, filed suit in the circuit court of Adams County against defendant, city of Quincy. The complaint alleged the existence of a "Working Agreement" (agreement) between the parties, a copy of which was attached to the complaint. That document recognized plaintiff as the representative of all employees of defendant who are members of plaintiff union, except for certain persons holding supervisory positions. Article VII of the agreement provides for a procedure for (1) handling grievances between "the City and the Union, or between the City and any employee covered by the Agreement," and (2) eventual arbitration of certain grievances which are not otherwise resolved. The complaint requested that defendant be required to submit a certain dispute to arbitration under the Uniform Arbitration Act (Ill. Rev. Stat. 1983, ch. 10, par. 101 et seq.).
The original complaint was silent as to the nature of the matters for which arbitration was sought. An amended complaint stated only that plaintiff had initiated grievances on August 26, 1983, and October 12, 1983, "for one Donald D. McCutcheon," with the grievances having been made "to the Sanitation Department of the defendant." Each of the parties made motions for summary judgment. However, without objection, the parties proceeded to a hearing by the trial court on the merits of the case. The trial court considered affidavits of the parties which had been submitted in support of their motions for summary judgment. Plaintiff appeals from a judgment "on the merits" for defendant, the result of which was to deny the request for arbitration. We affirm.
An affidavit of the deputy mayor of the city attached to a motion by defendant for summary judgment stated, among other things, that (1) the McCutcheon grievances relate "to part-time employees who are compensated by a rate set by the City of Quincy and not a collective bargaining agreement and further do not receive fringe benefits of a full-time employee * * * and further said part-time employees were not members" of plaintiff; (2) only full-time employees have a right to join plaintiff; (3) by the customs of the agreement, only full-time employees were covered by the agreement; and (4) the practice had been to treat all employees who work less than 1,000 hours per year as part-time, or temporary, employees.
A counteraffidavit by plaintiff's business representative stated (1) the custom and usage over the years had not been to treat those working less than 1,000 hours per year as part-time employees, but only to treat those individuals as part-time who worked "sporadically, and then only when a regular employee of [the sanitation department] is absent due to sickness, leave, or vacation," and (2) the gist of the dispute was that the city was employing people in the sanitation department "on a continuing week by week, or month by month basis to fill vacancies created by retirement or resignation" without having complied with the agreement "thereby depriving those employees of the benefits of such contract and depriving the Union of the occasion to enlist such employees as members" (emphasis added).
The record indicated that when vacancies occurred in the sanitation department, the city was replacing those workers with workers who were temporary and were not intended to work for more than 1,000 hours before leaving the employment. The city's explanation for this policy was that the city was contemplating contracting some of the work performed by the sanitation department and might not have a permanent need for these workers. These workers did not receive wages which are as high as the union scale nor did they receive certain fringe benefits. Plaintiff maintains that the city was continuing the foregoing policy for an unreasonable period of time. Defendant asserts that plaintiff is not entitled to arbitration because (1) the temporary workers are not covered by the agreement; and (2) the policy of hiring temporary workers is not a matter subject to arbitration by the terms of the agreement.
The trial court spent considerable time at the hearing to determine whether plaintiff was objecting on behalf of the temporary employees because the city's practice was unfair to the temporary employees who did not receive fringe benefits, or whether it was objecting on behalf of the union because the practice was unfair to it. In explaining its decision to rule in favor of the defendant, the trial court stated:
"A successful argument could perhaps be made that non-Union temporary or part-time employees are impliedly covered by the language of the contract; however, such a finding is not necessary since the nature of the grievance is not one for which arbitration is provided in the subject contract."
Accordingly, we need not determine whether temporary employees have a right to such arbitration because, in any event, the plaintiff can do so in its own behalf as provided by the terms of the agreement.
Article VII of the agreement provides for a grievance procedure for:
"[A]ny dispute between the City and the Union, or between the City and any employee covered by this Agreement, concerning the interpretation, application, or claimed violation of any of the provisions of this Agreement."
Article VII sets forth a step-by-step procedure for the handling of grievances and then provides for arbitration in the event that grievances are not resolved. Article VII, section 2, states in part:
"The jurisdiction of arbitration shall be limited to grievances arising out of the interpretation, application or claimed violation of this Agreement. The arbitrator shall not have jurisdiction to arbitrate provisions of a new agreement, nor to add to, ...