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City of Chicago v. Water Pipe Extension

January 29, 1999

CITY OF CHICAGO, A MUNICIPAL CORPORATION PLAINTIFF-APPELLANT/ CROSS-APPELLEE,)
v.
WATER PIPE EXTENSION, BUREAU OF ENGINEERING LABORERS' LOCAL NO. 1092, DEFENDANT-APPELLEE/ CROSS-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 95 CH 8461

The opinion of the court was delivered by: Presiding Justice Campbell

HONORABLE AARON JAFFE, JUDGE PRESIDING.

Plaintiff City of Chicago (City) appeals an order of the circuit court of Cook County denying its petition to vacate part of an arbitration award rendered in a labor arbitration between the City and defendant Water Pipe Extension, Bureau of Engineering Laborers' Local No. 1092 (Union, Local 1092). Defendant cross-appeals the trial court's order denying the Union's petition to vacate a different part of the same arbitration award that was decided in favor of the City.

The record on appeal indicates the following facts. The City is an Illinois municipal corporation and a "public employer" within the meaning of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(o) (West 1994)). Local 1092 is a "labor organization" within the meaning of the Act (5 ILCS 315/3(i) (West 1994)).

The City and the Union are parties to a collective bargaining agreement (CBA), which became effective January 1, 1992. This case primarily involves Article 9 of the CBA, which addresses "Hours of Work and Overtime." Section 9.1 of the CBA states the purpose of Article 9:

"This Article is intended to define the workweek, establish schedules and serve as the basis for the calculation of overtime. It shall not be construes as a guarantee of work or hours for any day or week except as expressly provided herein. Under no circumstances shall hours be changed solely to avoid the payment of overtime."

Section 9.3.2 of the CBA, which addresses changes of work shifts and schedules, provides in part that:

"Whenever the City believes it is necessary to temporarily change (a) a scheduled shift assignment or (b) the starting time for such assignment outside the *** normal starting times for shifts the Union shall be given at least ten (10) days notice and shall be advised as to the reason for the changes(s) and the duration thereof. In an emergency situation the City shall give as much notice as possible. As soon as the temporary necessity is alleviated normal assignment and scheduling shall be resumed.

Section 9.7.1 of the CBA addresses payment for overtime work. Generally, all work in excess of 8 hours in a workday is to be paid at 1 ½ times the standard pay rate. Work in excess of 10 ½ hours in a workday is to be paid at 2 times the standard pay rate. The first 8 hours of a sixth workday in a workweek is to be paid at 1 ½ times the standard pay rate, and 2 times the standard rate thereafter. Work performed on a seventh workday in a work week is to be paid at 2 times the standard rate.

Section 9.12 of the CBA addresses "Degree Days," providing in part as follows:

"(a) Locals 1001 and 76. In accordance with current practice, in Departments which historically curtailed operations due to low temperature and/or other weather factors, the Standard Temperature Station will be the Airport determined by the Department. A department will not change the traditional historic factors at which its operators have been curtailed without notice to and consultation with the Union.

(b) This section shall not apply to Local 1092."

On or about February 3 and March 14, 1994, the Union filed grievances against the City, alleging violations of the CBA. Grievance 1994-3 alleged that on or about January 17, 1994, the City's Water Department temporarily changed shifts for laborers to two 12 hour shifts, failed to notify the Union of the change and paid the employees only the regular pay for the first 8 hours of each shift. Grievances 1994-5 and 1994-6 alleged that the City's Sewer Department and Water Department, respectively, temporarily changed the shifts of laborers "assigned to snow removal under Phase III, effective February 23, 1994," and these employees were not paid overtime for the shifts worked or regular pay for shifts lost due to the alteration or cancellation of shifts.

On February 1, 1995, the grievances were submitted to arbitration before Edwin H. Benn. The record shows that between 1989 and 1994, Benn issued 3 awards in arbitrating 14 prior shift change grievances between the parties. Benn heard the 3 grievances at issue in this case on February 1 and 27, 1995.

The testimony at the hearing establishes that on January 17, 1994, the temperature was between 15 and 20 degrees below zero, with wind chills falling between 50 and 60 degrees below zero. Joseph Gagliano, the Deputy Commissioner of Operations in the Sewer Department, with responsibility for managing the Maintenance Division handling sewer cleaning and repair, and Deputy Commissioner Dennis Connolly decided to shut down operations for January 18, 1994, and to "take one day at a time."

Gagliano telephoned Union Secretary Treasurer Robert LoVerde to inform him that Gagliano was considering knocking off the employees with a "NW" (no work) or vacation day. Connolly told LoVerde that a facsimile would be sent notifying him of the decision for January 18 and possibly January 19. Operations were ultimately cancelled for both days. Gagliano testified, ...


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