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LOCAL UNION 15 INT'L B. OF ELECTRICAL WRKRS. v. EXELON CORP.

April 7, 2004.

Local Union 15, International Brotherhood of Electrical Workers AFL-CIO, Plaintiff,
v.
Exelon Corporation, including its subsidiaries Commonwealth Edison Company, Exelon Generation Company, and Exelon Business Services Company, Defendant



The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge

MEMORANDUM OPINION AND ORDER

On August 18, 2003, plaintiff Local Union 15, International Brotherhood of Electrical Workers, AFL-CIO ("Local 15") filed a Complaint for Enforcement of Arbitration Award against defendants Exelon Corporation ("Exelon Corp."), Commonwealth Edison Company ("ComEd"), Exelon Generation Company ("Exelon Generation"), and Exelon Business Service Company ("Exelon BSC") (collectively "defendants"). Local 15 asks this court to enforce arbitration awards rendered by arbitrator Jay C. Fogelberg ("Fogelberg"). On February 2, 2004, defendants moved to remand this action to Fogelberg for further arbitration. On February 13, 2004, the parties, pursuant to Federal Rule of Civil Procedure 56, filed cross-motions for summary judgment, with Local 15 requesting a judgment enforcing the awards and defendants seeking a judgment of remand. For the reasons explained herein, defendants motions for remand and summary judgment are granted. STATEMENT OF UNDISPUTED MATERIAL FACTS

Defendants ComEd, Exelon Generation, and Exelon BSC are signatories to a collective bargaining agreement ("CBA") with Local 15, which represents thousands of ComEd, Exelon Generation, and Exelon BSC employees. Defendant Exelon Corp, is not a party to this CBA, and Local 15 does not represent Exelon Corp, employees. Commencing in July 2001, ComEd and Exelon Generation eliminated various positions throughout their workforces, which led to certain of their clerical and physical employees being "bumped" from their positions and, in some instances, laid off. In August and September 2001, Local 15 filed three grievances contending, among other things, that this "bumpdown-layoff' procedure and other aspects of the bumpdown and layoffs violated the CBA. The grievances proceeded through the steps of the CBA's grievance-arbitration clause, and, because they could not be resolved internally, the parties proceeded to arbitration.

  Fogelberg was selected as the impartial arbitrator. He conducted arbitration hearings for six days in February 2002 and five days in June 2002. ComEd and Exelon Generation were parties to this arbitration; however, Exelon Corp, and Exelon BSC were not. The eleven days of hearings before Fogelberg generated over 2, 400 pages of transcripts. On December 31, 2002, Fogelberg issued an eighty-one page Opinion and Award. In the Opinion and Award, Fogelberg denied most ofLocal 15's claims, including Local 15's claims that laid off employees were improperly "replaced" with contractors or management personnel and that the "bumpdown-layoff' process used for employees in certain higher-level classifications was improper. Fogelberg did, however, sustain Local 15's grievances involving the "bumpdown-layoff' procedure used with respect to employees who were bumped into or within certain "pool" job classifications (specifically the Entry Clerk, Officer Service Representative, Officer Service Specialist, Meter Reader, and Station Laborer job classifications).

  Fogelberg concluded his December 31, 2002, Opinion and Award with the following directive:
Accordingly, the parties are forthwith directed to meet and negotiate with the express intent of restoring the rights of those Grievants who were adversely affected by the (improper) extension of each of the silos into the Pool, and to formulate an [sic] new process which will recognize and properly restore their service rights in selecting entry level positions system-wide.
(12/31/02 Opinion & Award*fn1 at 80.) Fogelberg also required the parties to notify him via a mutually executed letter within sixty calendar days following receipt of the Opinion and Award of the outcome of the ordered discussions. Finally, Fogelberg stated that he' Vill retain jurisdiction in this matter for the limited purpose of resolving any issues that may arise in connection with the remedy awarded here." (Id. at 81.)

  Pursuant to Fogelberg's directions, the parties met on several occasions to discuss implementation of the Opinion and Award and reached agreement on certain issues but continued to disagree as to others. On March 7, 2003, the parties jointly submitted to Fogelberg a document entitled "Agreements and Differences Relating to the Implementation of Arbitration Award." In this memorandum, the parties highlighted various areas of agreement and disagreement. Then, on March 10, 2003, the parties submitted position statements detailing their respective positions as to theissues of disagreement identified in the March 7, 2003, joint submission.

  On May 9, 2003, the parties' attorneys met with Fogelberg to discuss the issues set forth in the parties' joint submission and separate position statements. On May 15, 2003, Fogelberg issued a document entitled "Resolution of Outstanding Issues." Concluding this "Resolution," Fogelberg stated:
It is believed that the foregoing serves to adequately resolve all outstanding issues in connection with the Award's implementation, and expected that the parties will now be able to fully and finally effectuate the remedy ordered. Nevertheless, I will continue to retain jurisdiction with regard, exclusively, to any issues that may arise concerning the matters addressed here.
(5/15/03 Resolution of Outstanding Issues*fn2 at 6.)
  Thereafter, on May 21, 2003, defendants' counsel sent a letter to Fogelberg asking for further clarification regarding the process by which eligible employees under the Opinion and Award could reselect job positions. On June 5, 2003, in response to this letter, Fogelberg held a telephone conference call with the parties' attorneys. Fogelberg then sent the parties a letter dated June 11, 2003, the body of which stated:
Following our conference call last week, and upon further deliberation, I remain convinced that both sides would be best served through an implementation of the "Resolution of Outstanding Issues" issued May 15th, in connection with the above-referenced matter. While attempting to rule on the four remaining issues that had been identified by the parties subsequent to the issuance of the Opinion & Award, I would also note that it was intentionally drafted, in part, to bring about closure through further discussions between the appropriate representatives at the table, should that be necessary. Utilizing the document in this manner, while negotiating in good faith will, in my judgment, bring about a final and complete resolution of whatever issues that might remain. According [sic] no further clarification is now deemed appropriate.
(6/11/03 Fogelberg Letter.*fn3) During June, July, and the first half of August 2003, the parties and their attorneys corresponded, exchanged settlement proposals, and met on several occasions in an attempt to resolve the outstanding issues. On August 18, 2003, Local 15 filed this action to enforce Fogelberg's December 31, 2002, Opinion and Award and May 15, 2003, Resolution of Outstanding Issues. As of that date, August 18, 2003, the parties continued to disagree over various issues involving implementation of the Opinion and Award and "Resolution," including the following: (1) the identity of the adversely affected employees eligible for a remedy under the Opinion and Award; (2) whether certain employees who elected not to take required tests for certain job positions, or took and failed such required tests, are eligible for a remedy under the Opinion and Award; (3) whether certain individuals who resigned or were terminated since the July 2001 layoffs leading to arbitration, or since May 15, 2003, are eligible for a remedy under the Opinion and Award; (4) the content of the notification letter to be sent to adversely affected employees regarding implementation of the Opinion and Award; (5) what job positions are to be made available for selection by eligible employees, and in particular, the number and location of the Station Laborer positions that must be made available; and (6) whether offsets may be made to any backpay otherwise payable under the Opinion and Award for certain Voluntary Separation Plan severance benefits previously paid.*fn4 STANDARD OF REVIEW

  Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 255 (1986). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp, v. Catrett, 477 U.S. 317, 324 (1986). In considering a motion for summary judgment, this court is not required to scour the record in search of evidence to defeat a motion for summary judgment; the nonmoving party must identify with reasonable particularity the evidence upon which that party relies. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003); Bombard v. Fort Wavne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). Finally, the evidence relied upon must be competent evidence of a type otherwise admissible at trial. Stinnett v. Iron Works Gym/Executive Health Spa. Inc., 301 F.3d 610, 613 (7th Cir. 2002).

  ANALYSIS

  Both parties seem to agree that the material facts are undisputed. The central issue here concerns Arbitrator Fogelberg's intent. Local 15 asks this court to enforce Fogelberg's December 31, 2002, Opinion and Award and May 15, 2003, Resolution of Outstanding Issues.*fn5 Defendants argue that because Fogelberg has not issued a final and binding order, this action should be remanded to him for further proceedings.*fn6

  As defendants point out, this court cannot review an arbitration award under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, unless the award is final and binding. Gen. Drivers. Warehousemen & Helpers. Local Union No. 89 v. Riss & Co., 372 U.S. 517, 519 (1963); see also 22A Fed. Procedure § 52:2022 (Lawyers Ed. 2003) ("Generally, a District Court may review an arbitrator's rulings pursuant to 29 U.S.C.A. § 185 only after there is a final award containing findings as to liability and as to the remedy."). According to the Seventh Circuit, "[t] o be considered `final,' an arbitration award must be intended by the arbitrator to be his complete determination of every issue submitted to him." Anderson v. Norfolk & W. Rv. Co., 773 F.2d 880, 883 (7th Cir. 1985). Thus, this court must consider whether Fogelberg intended, by his December 31, 2002, Opinion and Award and May 15, 2003, Resolution of Outstanding Issues, to resolve, definitely, every issue before him. Based on the undisputed material facts, this court concludes that Fogelberg did not intend the Opinion and Award and "Resolution" to be final.

  In the Opinion and Award, Fogelberg specifically retained jurisdiction "for the limited purpose of resolving any issues that may arise in connection with the remedy awarded here." (12/31/02 Opinion & Award at 81.) This court agrees with Judge Andersen in Ameritech Services. Inc, v. Local Union No. 336. International Brotherhood of Electrical Workers. AFL-CIO, No. 96 C 5897, 1997 WL 222439, at *7 (N.D. Ill. Apr. 30, 1997), that an award that leaves "substantive tasks for the arbitrator to perform-namely, the determination of a remedy" is not final. Here, two subsequent documents from Fogelberg support the conclusion that an enforceable remedy has yet to be determined.

  First, after Fogelberg stated that he believed he had resolved the outstanding issues and expected that the parties would be able to fully and finally effectuate the remedy ordered, Fogelberg expressly "continue[d] to retain jurisdiction with regard, exclusively, to any issues that may arise concerning the matters addressed here."*fn7 (5/15/03 Resolution of Outstanding Issues at 6) (emphasis added). Fogelberg made clear that he would continue to decide any issues related to the "Resolution," including implementation of the remedies ordered. While not dispositive, this court concurs with Judge Hart that Fogelberg's "purported retention of jurisdiction . . . provides additional evidence that he did not intend the award to be final." GES Exposition Servs., Inc. v, Bates, No. 97 C 3716, 1998 WL 142456, at *5 (KD. Ill. Mar. 20, 1998); see also Orion Pictures Corp. v. Writers Guild of Am., W., Inc., 946 F.2d 722, 724 (9th Cir. 1991) ("Where an arbitrator retains jurisdiction in order to decide a substantive issue the parties have not yet resolved, this retention of jurisdiction `indicates that the arbitrator did not intend the award to be final."') (citation omitted). Moreover, the "Resolution" ordered further negotiations between the parties to resolve issues concerning those adversely affected employees who have resigned or otherwise been terminated since July 13, 2001. (5/15/03 Resolution of Outstanding ...


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