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ILLINOIS PUBLIC SERVICE v. ELECTRICAL WORKERS

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,
v.
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

I. INTRODUCTION

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.)

  2. IBEW is an unincorporated association and labor organization with its principal office in West Frankfort, Illinois. (Id. at ¶ 3.)

  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. A.)*fn2

  6. Section 3.02*fn3 contains a promise from IBEW to provide adequate services if employees cease work of their own volition. (Id.)

  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. (Id.)

  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 Agreement. (Id.)

  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 overtime work.

  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 through 176:6.)

  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 transcript] 175:17-23;.)

  23. CIPS was not able to affirmatively state that IBEW members who were unreachable by telephone were simply avoiding CIPS' call-outs.*fn10

  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] 131:8-24.)

  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

  IV. CONCLUSION

  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.

20050824

© 1992-2005 VersusLaw Inc.



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