United States District Court, S.D. Illinois
August 24, 2005.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY (d/b/a AMERENCIPS), a subsidiary of AMEREN CORPORATION, Plaintiff,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 702, Defendant.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
Now before the court is plaintiff Central Illinois Public
Service Company's ("CIPS") Motion for Preliminary Injunction
against defendant International Brotherhood of Electrical Workers
Local Union No. 702 ("IBEW"). (Doc. 4.) CIPS initially filed a
Verified Complaint for Temporary Restraining Order ("TRO"),
Preliminary Injunction and Other Relief, a Motion for Entry of a
TRO, Motion for Entry of a Preliminary Injunction, and Supporting
Memorandum. (Docs. 1, 3, 4 and 5, respectively.) IBEW timely
opposed both motions. (Doc. 9.)
In a hearing before this Court, the parties agreed to go forth
with CIPS' Motion for Entry of a Preliminary Injunction, which
would then render as moot CIPS' Motion for Entry of a TRO. After the conclusion of CIPS'
evidence, IBEW made an oral motion for judgment as a matter of
law in favor of IBEW. After taking under advisement the parties'
briefs, oral arguments, and evidence presented by CIPS at the
preliminary injunction hearing, in accord with FEDERAL RULE OF
CIVIL PROCEDURE 52, the Court finds and concludes as follows.
II. FINDINGS OF FACT
1. CIPS is an Illinois corporation and public utility providing
electric and gas service to residential and commercial customers
throughout portions of Southern and Central Illinois. (Doc. 1, ¶
2. IBEW is an unincorporated association and labor organization
with its principal office in West Frankfort, Illinois. (Id. at
3. IBEW represents many employees, including various employees
of CIPS. (Id.)
4. CIPS and IBEW executed a collective bargaining agreement
(the "Agreement") on March 4, 2004, effective July 1, 2003
through June 30, 2007, covering an IBEW bargaining unit of
employees in the Shawnee Division of CIPS, now called Division 7.
(Id. at ¶ 4.) 5. The Agreement between CIPS and IBEW contains a no-strike
clause under Article III, § 3.01.*fn1 (Doc. 1, Ex.
6. Section 3.02*fn3 contains a promise from IBEW to
provide adequate services if employees cease work of their own
7. In §§ 3.03-3.06, the Agreement provides a four-level dispute
resolution process to resolve "any disagreement arising between
[CIPS] and any employee and/or employees under this Agreement."
(Id.) The grievance adjustment procedure culminates in
arbitration at the demand of either party, pursuant to § 3.06.
8. Article I, § 1.03 of the Agreement, among other things, sets
forth the conditions under which CIPS may contract out work
covered under the Agreement to workers not represented by IBEW.
(Id.) However, a separate Letter of Understanding from CIPS to
IBEW, dated November 1, 2003, and incorporated into the
Agreement, lists various types of work excluded from § 1.03
including spraying work. (Id. at pp. 83-84.)
9. CIPS hired a subcontractor, Owen Specialty Services ("OSS"),
which employs non-Union workers, to spray herbicide along CIPS'
utility right-of-ways and substations located throughout the
Southern Illinois region. (Doc. 5, p. 1.)
10. Because it felt that OSS paid its employees less than area
standards wages and benefits, IBEW began lawfully picketing OSS
at the hotel where its employees were staying on July 14, 2005.
(Doc. 9, pp. 2-3.)
11. On the evening of July 24, 2005, IBEW held a rally in
Marion, Illinois, outside of that same hotel. (Id. at 3.)
12. On the same evening as the IBEW rally, there was a high
voltage electric line failure between a CIPS' substation and the
Federal Penitentiary in Marion, Illinois. (Doc. 5, p. 2.) Because
this power outage occurred after normal working hours, CIPS was
required to contact its employees through one of its dispatch
centers to request they work "call-out overtime."*fn4
(Id.; see also James O'Daniel Preliminary Injunction Hearing
testimony [rough transcript] 100:9 through 102:6.)
13. CIPS was unable to get any positive response to its
call-outs that evening from its employees who are also IBEW
members (hereinafter "IBEW members"). CIPS claimed its dispatch
center made over approximately 200 calls that night (including
second-attempt calls) and received either no answer, an answering
machine, or refusals to work the overtime due to personal
reasons. (See, e.g., O'Daniel testimony [rough transcript] 106:9 through 107:15; see
also Neil New Preliminary Injunction Hearing testimony [rough
transcript] 171:24 through 172:23.)
14. CIPS was forced to handle the emergency power outage on
July 24, 2005, using its supervisors and a crew of employees who
were already present working other types of overtime other than
call-out. (Id. at p. 3; O'Daniel testimony [rough transcript]
115:13 through 116:18.)
15. IBEW members either failed to answer the telephone or
declined to accept the call-out overtime work during the evening
of July 25, 2005, and the morning hours of July 26, 2005, and
also the evening of July 26, 2005 through the morning hours of
July 27, 2005. (Doc. 5, p. 3.) CIPS claims this "mass refusal" of
IBEW members to work call-out overtime was, in effect, a
"boycott," intended to register a grievance on behalf of IBEW in
regard to CIPS' subcontracting arrangement with OSS. (Id.)
Again, CIPS managed to cover the call-out overtime work using a
crew composed of its supervisors. (New testimony [rough
transcript] 176: 7-10.)
16. On the evening of July 27, 2005, IBEW members again began
responding to and accepting call-out overtime work. (Id.)
17. On July 25, 2005, the Industrial Relations Manager for
CIPS, Charles M. Baughman, had a telephone conversation with
IBEW's Business Manager, Gary Roan. (Id. at p. 5.) Baughman
communicated his belief to Roan that the mass refusal by IBEW
members to work call-out overtime on the evening of July 24th
had been essentially a boycott. (Id.) CIPS states that Roan
responded that he could not force IBEW members to accept call-out
overtime they were not contractually obligated to work, and that at the time, he had no one else to
perform the necessary call-out overtime work.*fn5 (Id.;
see also Charles Baughman Preliminary Injunction Hearing
testimony [rough transcript] 22:19 through 23:9.)
18. During this conversation with Roan, Baughman told Roan that
CIPS would proceed to seek an injunction in court if IBEW did not
comply with its obligations under § 3.02 of the Agreement.
(Baughman testimony [rough transcript] 24:24 through 25:9.)
19. Baughman followed up this conversation with a letter to
IBEW, demanding either an end to the effective boycott, or that
IBEW provide CIPS with replacement workers or services sufficient
to permit the call-out overtime work to be adequately performed,
pursuant to § 3.02 of the Agreement. (Id., Ex. C, pp. 4-5.)
20. On July 28, 2005, CIPS filed its Verified Complaint and
corresponding Motion for Entry of a Temporary Restraining Order,
Motion for Entry of a Preliminary Injunction and supporting
memorandums. (Docs. 1-5.)
21. In its Verified Complaint, CIPS has prayed for, among other
relief, issuance of a preliminary injunction against IBEW to
preserve the "status quo" by (1) ensuring IBEW ceases to call
upon or permit its members to refrain from accepting call-out
over time work, and (2) ensuring that IBEW ceases to violate its
obligations under the Agreement to provide adequate services if
there is inadequate IBEW member response to call-out overtime.
(Doc. 1, pp. 8-9.) III. CONCLUSIONS OF LAW
1. The Court initially heard this matter pursuant to § 301 of
the Labor Management Relations Act. 29 U.S.C. § 185(c).
2. As the parties have agreed during the August 12, 2005,
hearing to argue CIPS' Motion for Entry of a Preliminary
Injunction, the Motion for Entry of a Temporary Restraining Order
is decidedly moot. Accordingly, the Court considers CIPS' Motion
for Entry of a Preliminary Injunction. (Doc. 4.)
3. To analyze whether a preliminary injunction is proper, the
Court must first determine whether it has jurisdiction to grant
injunctive relief under the Norris-LaGuardia Act, as this
involves a potential labor dispute. 29 U.S.C. § 104. If proper
jurisdiction is found, then the Court must analyze whether an
injunction would be proper under equitable injunction principles.
4. The Norris-LaGuardia Act expressly prohibits a court from
issuing an injunction in a case "involving or growing out of any
labor dispute" to prohibit a union or union member employees from
"ceases or refusing to perform any work." 29 U.S.C. § 104.
5. The Supreme Court, however, has created a narrow exception
to this anti-injunction policy of the Noris-LaGuardia Act, as set
forth in Boys Markets, Inc. v. Retail Clerks Union, Local 770,
398 U.S. 235 (1970).
6. Under the holding in Boys Markets, a court can use
equitable remedies, such as injunctive relief, to enjoin a union
from striking over a contractually-arbitrable dispute. Id. at 251-53. Essentially,
"[i]f the employer has contractually obligated itself to
arbitrate a given dispute, by the same token that employer must
be able to enjoin the union from striking over that dispute."
Chicago Dist. Council of Carpenters Pension Fund v. K&I
Construction, Inc., 270 F.3d 1060, 1064 (7th Cir. 2001).
7. Specifically, a court must first hold that the contract
between an employer and the union effectively binds both parties
to arbitrate the labor dispute at issue and secondly, the court
must determine that an injunction "`would be warranted under the
ordinary principles of equity.'" Id. (citing Boys Markets,
398 U.S. at 254) (internal citations omitted).
8. As the Seventh Circuit stated in K&I Construction, "the
relevant issue is not simply whether the labor action violates
the collective bargaining agreement, but more specifically
whether the dispute that gave rise to the labor action was also
one that the parties specifically agreed would be the subject of
mandatory arbitration." K&I Construction, 270 F.3d at 1064;
see also Elevator Manufacturers' Assoc. of New York, Inc. v.
Local 1, Int'l Union of Elevator Constructors, 689 F.2d 382,
385 (2d Cir. 1982).
9. Citing two Supreme Court opinions, the Seventh Circuit has
previously illustrated its belief in why the underlying dispute
must not merely be the fact that union members had engaged in a strike.*fn6 Id. (citing
to Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen's
Ass'n, 457 U.S. 702 (1982) and Buffalo Forge Co. v. United
Steelworkers of America, ALF-CIO, 428 U.S. 397 (1976)).
10. CIPS claims that § 3.01 of the Agreement obligates IBEW to
avoid sponsoring a strike (or "boycott") and § 3.02 requires IBEW
to ensure continuous performance of service for CIPS if there is
such a work stoppage initiated by IBEW members. (Doc. 5, p. 13.)
Further, CIPS argues that the "boycott" of call-out overtime work
occurring on July 24-27, 2005, resulted in IBEW's violation of
its contractual obligations under §§ 3.01 and 3.02 of the
11. CIPS has further alleged that IBEW strongly encouraged its
members to refrain from accepting the call-out overtime during
the time period at issue and also refused to supply CIPS with
other workers to cover the call-out overtime work, in an effort
to make known its grievance regarding the OSS contract. (Id.)
These violations of the Agreement are what CIPS believes is the
underlying arbitrable dispute, which should then meet the test as
set forth in Boys Markets for issuing an injunction despite the
prohibition under the Norris-LaGuardia Act.
12. The Court finds that CIPS has failed to first and foremost
show that IBEW violated §§ 3.01 or 3.02 of the Agreement. Assuming
arguendo, that IBEW had, in effect, encouraged a "boycott" or
strike of call-out overtime work, CIPS claims that this was due
to a grievance IBEW had with OSS performing spraying contract
work for CIPS. (See Doc. 1, ¶ 6, and Doc. 5, pp. 1-3.)
13. CIPS has clearly pointed out, however, that spraying
contract work is expressly excluded from the
Agreement.*fn7 Therefore, it is not an arbitrable issue. As
such, under the reasoning of Jacksonville Bulk Terminals and
Buffalo Forge, a resulting work stoppage amounting to a strike
cannot be enjoined under the Norris-LaGuardia Act, because the
underlying dispute is not arbitrable.
14. If IBEW did have a grievance regarding the OSS work, it
could not force CIPS to arbitrate as the CIPS/OSS spraying
contract is outside of the scope of the Agreement and not subject
to mandatory arbitration.
15. The Court finds that CIPS has not proven that this matter
falls within the Boys Markets exception. In short, to issue an
injunction against IBEW to preserve the status quo would go
against binding precedent and therefore be improper.
16. The Court thus finds that it does not have proper
jurisdiction under the Norris-LaGuardia Act to issue injunctive
relief at this time.
17. The Court further finds CIPS failed to prove that IBEW
violated the Agreement in the first instance.*fn8
18. CIPS alleges that IBEW encouraged or provoked a "boycott"
of its IBEW members from accepting this call-out overtime work
from July 24, 2005, through July 27, 2005, in violation of § 3.01
of the Agreement and as such, CIPS suffered damages. (Doc. 1, ¶
6.) Additionally, CIPS alleges that IBEW violated § 3.02 of the
Agreement by not providing CIPS with additional workers to cover
the call-out overtime work during the time period at issue. (Doc.
1, ¶¶ 7, 17.) In examining the evidence presented by the parties,
the Court finds that CIPS has not met its burden of proving that
either IBEW provoked the alleged strike or "boycott," or that
IBEW refused to provide additional workers to cover the call-out
19. CIPS has conceded through witness testimony that IBEW
members are not contractually obligated to accept call-out
overtime.*fn9 (See O'Daniel testimony [rough transcript]
128:12-17 and 129:2-10; New testimony [rough transcript] 175:24
20. Under the Norris-LaGuardia Act, CIPS is required to show
IBEW encouraged the alleged strike or "boycott" of call-out
overtime by "clear proof of [IBEW's] actual participation in, or
actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof."
29 U.S.C. § 106; see also Air Line Pilots Assoc., Int'l v. United
Air Lines, Inc., 802 F.2d 886, 906, (7th Cir. 1986).
21. Given that call-out overtime work is not compulsory, the
Court finds CIPS has not presented adequate explanation of how
refusing something an IBEW member is not obligated to do would be
considered a strike or boycott.
22. To show evidence of provocation of the strike or "boycott",
CIPS points to Baughman's telephone conversation with Roan on
July 25, 2005, wherein Roan allegedly indicated to Baughman that
he had told CIPS representatives there "would be a problem" if
they brought in OSS to perform spraying work. (Doc. 5, p. 5, and
Ex. C, ¶ 6; see also Baughman testimony [rough transcript]
21:10 through 22:17.) Yet, CIPS cannot point to one IBEW member
who refused call-out overtime work because the IBEW encouraged
the member to do so. (Baughman testimony [rough transcript]
63:12-25 and 65:16-20; O'Daniel testimony [rough transcript]
123:18-25 and 124:22 through 125:3; New testimony [rough
23. CIPS was not able to affirmatively state that IBEW members
who were unreachable by telephone were simply avoiding CIPS'
24. CIPS cannot point to any witness testimony or documentary
evidence to clearly show that IBEW had encouraged a boycott or strike of
call-out overtime work during July 24-27, 2005. Instead, CIPS
relies on numbers it presented evidence of call-out data to
show the number of callouts made on each night in question and
the number of responses, or lack of responses. However,
statistical evidence alone is insufficient to show any
involvement on the part of IBEW in the alleged call-out overtime
work boycott. United Airlines, 802 F.2d at 905-06 (The
employer, United, "failed to identify even a single pilot who had
taken sick leave without being actually sick," and therefore
could not prove by "clear proof" using merely attendance
statistics that the union was involved with or had provoked the
alleged sick leave abuse issue.).
25. As such, the Court finds CIPS has failed to present clear
evidence that IBEW did anything to provoke or encourage its
members to refuse call-out overtime during July 24-27, 2005, in
violation of § 3.01 of the Agreement.
26. CIPS claims that IBEW violated § 3.02 of the Agreement by
failing to provide adequate services to CIPS (i.e., other
workers) to answer the call-out overtime needs during the time
period in question. (Doc. 1, ¶¶ 7, 17.)
27. CIPS' witness, Baughman, testified that during his
telephone conversation with Roan, he had requested IBEW to
provide workers to perform the call-out overtime work, and Roan
had told him he had no workers to provide.*fn11 (Baughman testimony [rough transcript] 21:10 through 22:17.) Yet,
CIPS' witness at the preliminary injunction hearing, James
O'Daniel, testified that he had contacted several contractors
represented by IBEW that were willing to perform the call-out
overtime work, but that CIPS was able to handle the work without
contracted assistance. (O'Daniel testimony [rough transcript]
28. The Court has found that the IBEW members were not
effectively "on strike" regarding the call-out overtime work
during July 24-27, 2005, and thus, the requirements of § 3.02
were not triggered. Therefore, the Court further finds that IBEW
would not have had a duty to provide CIPS with workers for the
call-out overtime during the time period at issue.*fn12
29. Because CIPS failed to prove that IBEW was not able to
provide workers, and also because the Court finds that IBEW did
not technically have a duty under § 3.02 in this instance to
provide workers, IBEW did not violate § 3.02 of the Agreement.
30. In sum, the Court finds that it has no jurisdiction under
the Norris-LaGuardia Act to issue injunctive relief in this case.
The Boys Markets exception to the Act does not apply here, as
the underlying dispute is not an arbitrable issue, and the ability for CIPS to subcontract spraying work to OSS
would not be within the scope of the Agreement. Further, even if
the underlying dispute was arguably the alleged violation of §§
3.01 and 3.02 of the Agreement, the Court finds that CIPS has not
met its burden to show that IBEW either provoked the supposed
strike or "boycott" or was unwilling to provide workers to handle
CIPS' call-out overtime work.*fn13
In regard to plaintiff CIPS' Motion for Entry of a Preliminary
Injunction, the Court FINDS in favor of defendant IBEW and
against plaintiff CIPS. Defendant's oral motion for Judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 52(c)
at the close of Plaintiff's evidence is GRANTED.
IT IS SO ORDERED.
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