The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Both the plaintiffs and the defendant in this case have moved for summary judgment. Each side has filed its summary judgment motion and supporting materials, and each side has responded to the other side's motion. The briefing schedule originally entered by the Court contemplated a reply brief on each side. The Court did not realize at the time, however, that each side's motion for summary judgment essentially presented the flip side of the opposing side's motion. Had the Court understood that, it would not have entered a briefing schedule permitting, in effect, six briefs addressed to the same points (three per side); rather, it would have entered a briefing schedule allowing for four briefs altogether -- a motion and brief by one side, a cross-motion and brief by the other side, a combined reply/response by the initial moving party, and a final reply by the cross-moving party. Now that the Court realizes that the motions are essentially mirror images of each other, and now that each side has filed two briefs, no more is required. The Court also notes that the issues to be determined are issues of law and issues of application of law to undisputed facts; under the circumstances, further briefing would not illuminate the issues beyond what has already been accomplished in two rounds of briefing. The remainder of the briefing schedule is vacated, and the Court will now proceed to rule on each side's motion.
For the reasons stated below, the Court grants defendant's motion for summary judgment and denies plaintiffs' motion for summary judgment.
Plaintiffs Exelon Generation Co., Exelon Business Services Co., and Commonwealth Edison Co. (collectively "Exelon") are affiliated entities in the business of electrical power generation and supply. Defendant Local 15 of the International Brotherhood of Electrical Workers is the representative of over 5000 Exelon hourly employees. Exelon and Local 15 are parties to a collective bargaining agreement, which includes various side agreements called "memoranda of agreement" entered into from time to time. The CBA provides that Local 15 is the exclusive bargaining representative of all employees contained in the bargaining unit defined in the CBA; it is silent regarding whether Local 15 represents former bargaining unit employees who have retired.
The CBA provides that "[s]hould any dispute or difference arise between the Company and the Union or its members as to the interpretation or application of any of the provisions of this Agreement or with respect to job working conditions," the dispute is to be settled through a grievance procedure established under the CBA. Pl. Ex. 2, Art. VIII § 5. The grievance procedure includes four steps. The first step is a "local investigation" involving union stewards and department-level supervisory personnel of Exelon; the second step involves consideration by a "business unit joint grievance committee" consisting of union business representatives and Exelon managerial personnel; the third step consists of review of the grievance by a committee consisting of senior managers of the union and Exelon; and the fourth step involves arbitration of the grievance by an impartial arbitrator selected from a list provided by the Federal Mediation and Conciliation Service. The issue in this case concerns whether a particular dispute is subject to arbitration.
The CBA contains a provision permitting eligible management and union employees and retirees to elect certain medical insurance benefits financed largely by contributions from Exelon. In August 2003, Exelon announced that starting in 2004, it would require retirees to contribute a greater amount to covered medical expenses, and it implemented those changes in January 2004. In September 2005, Local 15 filed a grievance alleging that Exelon had violated the CBA in imposing the changes to retiree medical benefits (the grievance also referenced changes to benefits for active employees, but those are not at issue in this case). The grievance did not identify any particular person on whose behalf it was filed; a blank on the grievance form for "name of employee(s)" was filled in with the phrase "for the good of the union." Def. Ex. 7. It is unclear exactly how Exelon responded to the grievance at the step one stage, though it is obvious that Exelon denied the allegation.
Local 15 filed the grievance at step two in November 2005, using the same language it had used in the step one grievance form. Exelon responded by stating that "[t]here has been no violation of the [CBA] as alleged. This grievance and the relief sought are denied." Def. Exs. 9 & 10. Local 15 filed the grievance at step three in late November 2005, again using the same language, and in February 2006, Exelon gave the same response it had given at step two. Def. Exs. 11 & 12.
On February 19, 2006, Local 15 submitted a request for arbitration to the FEMS. Def. Ex. 13. In June 2006, a business representative of Local 15 requested that Exelon supply the current mailing address of each retiree who formerly had been a member of the bargaining unit represented by Local 15. Def. Ex. 1, Stipulated Fact 25. Exelon rejected this request in early July 2006 in a letter stating that Local 15 did not represent retirees because they not part of the bargaining unit. Pl. Ex. 1, attached ex. 4. Later in July 2006, a lawyer for Local 15 renewed the request for information, arguing that because Local 15 was seeking to enforce rights negotiated on behalf of persons that were, at the time, members of the bargaining unit, it could enforce their rights. Pl. Ex. 10. Exelon did not alter its position in response to this letter.
It is undisputed that Exelon participated in the selection of an arbitrator and hearing dates for the grievance. Def. Ex. 1, Stipulated Fact 27. In October 2006, the arbitrator sent Local 15 and Exelon a letter in which he accepted the appointment and proposed hearing dates in April and May 2007. Pl. Ex. 11. Exelon filed this suit in March 2007, seeking a declaratory judgment that it was not required to arbitrate the dispute.
The parties have stipulated that Local 15 does not now have the consent of any retirees it has not contacted and that it is seeking the names and addresses of retirees affected by Exelon's changes to the medical benefit plan to determine whether they will consent to Local 15's representation of their interests in arbitration. Def. Ex. 1, Stipulated Fact 28. There are, however, some retirees who have consented to Local 15's representation. Specifically, it is undisputed that seven retired bargaining unit employees who are the members of what amounts to a steering committee of the ComEd/Exelon Retired Employee Association supported Local 15's decision to file the grievance over retiree medical benefits. See Def. LR 56.1 Stat. ¶¶ 14-17; Pl. LR 56.1 Resp. ¶¶ 14-17. It is likewise undisputed that at an Association meeting in March 2007, this same committee provided the Association's members with a status report regarding the arbitration, and that no one in attendance objected to Local 15's representation of retirees' interests.*fn1 There is no record, however, of what retirees attended the meeting. See Def. LR 56.1 Stat. ¶ 34; Pl. LR 56.1 Resp. ¶ 34. Finally, it is undisputed that no affected retiree has brought an individual claim against Exelon over the changes to retiree medical benefits. See Pl. LR 56.1 Stat. ¶ 35; Def. LR 56.1 Resp. ¶ 35.
On a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party, drawing reasonable inferences in its favor, and may not grant summary judgment unless there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 816 n.26 (1982).
In its motion for summary judgment, Exelon argues that the grievance is not subject to arbitration because Local 15 has not received the consent of all the affected retirees to represent their interests, and also because Exelon has not consented, either expressly or implicitly, to arbitrate the grievance, which Exelon argues falls outside of the CBA's grievance procedure. In its motion for summary judgment, Local 15 argues that the grievance is an arbitrable dispute because it is within the CBA's grievance procedure and that in any event, Exelon waived its right to challenge arbitrability by participating in steps one through three and part of step four of the procedure. ...