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Merryman Excavation, Inc. v. International Union of Operating Engineers

August 17, 2009

MERRYMAN EXCAVATION, INC., PLAINTIFF,
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, AFL-CIO, ET AL., DEFENDANTS/COUNTER-PLAINTIFFS, AND MID AMERICA REGIONAL BARGAINING ASSOCIATION, MIDWEST OPERATING ENGINEERS FUND, LOCAL 150 ASSISTANCE FUND, STEVEN CISCO, JOHN RABINE, RAYMOND (RAY) HERRON, MELINDA HENSEL, MICHAEL KRESGE, RICHARD DUNLAP, TIM GORMAN, TIM SCULLY, JOSEPH BENSON, JOHN VIGNOCCHI, AND CHARLES AUGUST, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Merryman Excavation, Inc. ("Merryman") filed a thirteen count Complaint against: (i) International Union of Operating Engineers, Local 150, AFL-CIO ("Local 150"); (ii) The Mid-America Regional Bargaining Association, John Vignocchi, Tim Scully, and Joseph Benson (collectively "the MARBA Defendants")*fn1 ; and (iii) Charles August, Melinda Hensel, John Rabine, Ray Herron, Michael Kresge and Richard Dunlap (collectively "the Individual Union Defendants") pursuant to § 301 of the Labor Management Relations Act (the "LMRA"). In Counts I through XI, filed only against Local 150, Merryman seeks to vacate eleven grievance awards entered by the Joint Grievance Committee ("JGC"). In Count XII, Merryman alleges an Illinois common law civil conspiracy claim against the Individual Union Defendants.*fn2 Local 150 filed a Counterclaim against Merryman seeking to enforce nine of the eleven awards entered by the JGC. Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1, Local 150 and the Individual Union Defendants (in one consolidated motion), filed a motion for summary judgment on Counts I through XII of Merryman's Complaint and on its Counterclaim against Merryman. Merryman filed a cross-motion for summary judgment on Counts I through XI of its Complaint and on Local 150's Counterclaim. For the reasons stated herein, Local 150's*fn3 Motion for Summary Judgment is granted and Merryman's Motion for Summary Judgment is denied.

STATEMENT OF UNDISPUTED FACTS*fn4

Merryman is an Illinois Corporation engaged in the business of installing underground sewer piping. MM 56.1 Resp. ¶ 3. Local 150 is a labor organization representing members throughout Illinois, Iowa and Indiana. MM 56.1 Resp. ¶ 4. MARBA is an Illinois corporation made up of multi-employer associations representing contractor-employers in the Chicago area. MM 56.1 Resp ¶ 7. On or about April 1, 2000, Merryman entered into a Memorandum of Agreement with Local 150 that incorporated an existing collective bargaining agreement (the "CBA") between Local 150 and MARBA. MM 56.1 Resp. ¶ 8. By virtue of the Memorandum, Merryman became bound by two substantially similar "Master Agreements" known as the Illinois Heavy Highway and Underground Agreements. Id.

The CBA provides a four-step procedure to resolve disputes between an employer and Local 150. MM 56.1 Resp. ¶ 16. In the first phase of the procedure, the CBA requires that the grievance be "taken up" between a Local 150 Business Agent and a representative of the employer ("Step One"). MM 56.1 Resp. ¶ 16. This is usually done through a face-to-face conversation at a jobsite or in a telephone call. MM 56.1 Resp. ¶ 17. There is no requirement that the Step One communication be in writing. MM 56.1 Resp. ¶ 18. In the event that the dispute cannot be resolved within seven days of the Step One conference, the parties are required to reduce the grievance to writing and conduct a conference between officials from Local 150 and the employer ("Step Two"). MM 56.1 Resp. ¶¶ 16, 19. If this fails to resolve the dispute, the parties must submit the written grievance to the Joint Grievance Committee ("JGC") for resolution within fifteen days ("Step Three"). MM 56.1 Resp. ¶ 16.

As for the composition of the JGC, the CBA requires that there be an equal number of employer representatives and union representatives on the Committee. MM 56.1 Resp. ¶ 21. Specifically the CBA states that the "Committee shall consist of an equal number of members representing Employers and the Union." MM 56.1 Resp. ¶¶ 16, 21;MM Ex. J, CBA at Art. XIII, § 1, p. 41. The CBA also states that "The Union or Association may appoint alternate members." MM 56.1 Resp. ¶ 16. The JGC is empowered under the CBA to resolve grievances if it can do so by a majority vote. MM 56.1 Resp. ¶¶ 16, 21. If the JGC is unable to resolve a grievance by majority vote, the grievance may be submitted within thirty days for arbitration ("Step Four"). MM 56.1 Resp. ¶ 16. Pursuant to the CBA, the time limits that apply to the grievance procedures may be extended, but only by the written mutual consent of the Union, the Association and/or the Employer. MM 56.1 Resp. ¶ 16.

The JGC is to follow the Procedural Rules of the Joint Grievance Committee when conducting its hearings; and, "[n]either the Joint Grievance Committee nor an arbitrator shall have any authority to add to, detract from, or in any way alter the provisions of [the CBA] or make a new Agreement." MM 56.1 Resp. ¶¶ 16, 23. The Procedural Rules were negotiated and entered into by Local 150 and MARBA. MM 56.1 Reply ¶ 6. Under the Procedural Rules, there must be three members representing the Union and three members representing the Employer to constitute a quorum for transacting the business of the JGC; however, "by agreement of both parties, under extenuating circumstances, a lesser number of equal representatives may be used." MM 56.1 Resp. ¶ 24. The Procedural Rules also provide that "only duly authorized Joint Committee members or alternate members shall be permitted in Committee sessions as observers unless otherwise agreed to by the Committee's Co-Chairmen." After the JGC has heard a grievance it shall exclude the interested parties and retire into "executive session" to dispose of the grievance. MM 56.1 Resp. ¶¶ 25, 26. In "disposing" of the grievance, each Committee member is required to render a vote. MM 56.1 Resp. ¶ 26. "In the event an equal number of Union and Employer Committee members are not present, the respective panels representing the Employers and the Union may cast votes in an amount equal to the number of members present on behalf of the panel having the fewer members present." MM 56.1 Resp. ¶ 26. If the JGC enters an award against an employer for a grievance alleging a violation based upon assignment of work to employees or labor organizations not affiliated with the bargaining unit covered by the parties' CBA, the CBA requires the employer "to compensate the bargaining unit member who would have worked but for the Employer's violation" double the rate for each hour that the aggrieved worker would have worked but for the employer's violation. Local 150's 56.1 Reply ¶ 17; MM Ex. J at Art. 1 § 11, p. 9.

In 2006, Local 150 filed thirteen grievances against Merryman: Nos. 06-30, 06-31, 06-32, 06-33, 06-34, 06-35, 06-36, 06-37, 06-38, 06-40, 06-51, 06-59, 06-60. MM 56.1 Resp. ¶¶ 43, 46, 49, 54, 58, 64, 68, 71, 76, 81, 91, 96, 100. The JGC convened two separate hearings to hear these grievances--one on August 2, 2006 and one on October 25, 2006. MM 56.1 Resp. ¶¶ 38, 87.

August 2, 2006 JGC Hearing

At the August 2, 2006 hearing, Local 150 and Merryman presented ten of the thirteen grievances to the JGC: Nos. 06-30, 06-31, 06-32, 06-33, 06-34, 06-35, 06-36, 06-37, 06-38, and 06-40. MM 56.1 Resp. ¶ 42. There were eight Local 150 members present during the JGC proceedings on August 2, 2006: 1) Steven Cisco ("Cisco"), the Union Co-Chairman of the JGC who participated in the proceedings; 2) Michael Kresge ("Kresge"), a member of the JGC who participated in the proceedings; 3) Richard Dunlap ("Dunlap"), a member of the JGC who participated in the proceedings; 4) Tim Gorman ("Gorman"), a member of the JGC who participated in the proceedings; 5) John Rabine ("Rabine"); 6) Ray Herron ("Herron"); 7) Melinda Hensel ("Hensel"), Local 150's attorney who was present during the JGC's deliberations; and 8) Charles August ("August") who was present during the proceedings. MM 56.1 Resp. ¶ 5; Local 150's 56.1 Resp. ¶ 6; MM Ex. A ¶ 14-21. At least four of the Local 150 members present at the August 2 hearing were on the JGC as union representatives. MM Ex. A ¶ 14-21. While not all of these Local 150 members were present during each of the Committee's executive sessions, during every executive session held that day, there was at least one more Local 150 member present than there were JGC members representing the employer. Local 150's 56.1 Reply ¶ 30; MM Ex. D at p. 43; MM Ex. M at p. 184-91; MM Ex. E at ¶ 5; MM Ex. F at ¶ 5; MM Ex. G at ¶ 5.*fn5

There were three JGC members representing Merryman at the August 2, 2006 grievance proceedings: 1) Tim Scully ("Scully"), an employee of Scully, Inc.; 2) Joseph Benson ("Benson"), an employee of Central Blacktop Company, Inc.; and 3) John Vignocchi ("Vignocchi"), an employee of John Keno and Company, Inc. MM 56.1 Resp. ¶ 7; Local 150 56.1 Reply ¶ 7. Both Scully and Vignocchi possessed a valid owner/operator card with Local 150 at the time of the August 2, 2006 hearing. Local 150's 56.1 Reply ¶ 7. They claim that they have had this card for over thirty years. MM Ex. E ¶¶ 8-10; MM Ex. G ¶¶ 8-10. The card allows them to operate their companies' machinery without violating their collective bargaining agreement with Local 150. Local 150's 56.1 Reply ¶ 7; MM Ex. E ¶¶ 8-10; MM Ex. G. ¶¶ 8-10. For Grievance Nos. 06-30 and 06-31, all three Employer representatives, Scully, Benson and Vignocchi, were present during the executive sessions. Local 150's 56.1 Reply ¶ 25. For the remainder of the grievances at issue in this case, Nos. 06-32, 06-33, 06-34, 06-35, 06-38 and 06-40, only two Employer representatives, Scully and Benson, were present during the executive sessions. Local 150's 56.1 Reply ¶ 29. At the hearing, Merryman was represented by Robert Hanlon ("Hanlon"), Merryman's attorney and business representative. MM 56.1 Resp. ¶¶ 27, 41. Hanlon was not present in any of the executive sessions when the JGC cast its votes. MM Ex. M at p. 190. Carol Lord ("Lord"), a MARBA employee, served as the JGC's Secretary for the August 2, 2006 hearing. MM 56.1 Resp. ¶ 39; MM 56.1 Reply ¶ 35.

The first grievance presented at the hearing was No. 06-30. MM 56.1 Resp. ¶ 43. Hanlon objected to the JGC's jurisdiction to hear the grievance alleging that the grievance was not timely raised because Step Two of the grievance procedure, filing a written grievance, did not take place within seven days of the Step One conference as mandated by the parties' CBA. MM 56.1 Resp. ¶ 44. After the parties finished presenting their evidence, all interested parties were asked to leave the room so that the JGC could go into executive session. MM 56.1 Resp. ¶ 45. The JGC entered an award on grievance No. 06-30 in favor of Local 150. MM 56.1 Resp. ¶ 45. The JGC directed payment of the award to Local 150's Assistance Fund. MM 56.1 Resp. ¶ 45. After the decision was announced, Hanlon objected to the JGC's award to the extent that it directed payment of the award to Local 150's Assistance Fund. MM 56.1 Resp. ¶ 45. Hanlon made no other objections regarding grievance No. 06-30 during the August 2 hearing. MM 56.1 Reply ¶ 10.

The second grievance presented was No. 06-31. MM 56.1 Resp. ¶ 46. Hanlon again objected to the JGC's jurisdiction to hear the grievance alleging that the grievance was not timely raised. MM 56.1 Resp. ¶ 47. Specifically, Hanlon asserted that Step Two of the grievance procedure, filing a written grievance, did not take place within the proscribed seven days of the Step One conference. Local 150's 56.1 Reply ¶ 11; MM Ex. B, 8.02.06 Tr. p. 33-34. Hanlon made no other objections regarding grievance No. 06-31 during the August 2 hearing. MM 56.1 Reply ¶ 11. After the parties presented their evidence, all interested parties were asked to leave the room so the Committee could go into executive session. MM 56.1 Resp. ¶ 48. The JGC was unable to reach a majority decision on this grievance and advised Local 150 that it could pursue the grievance further through arbitration. MM 56.1 Resp. ¶ 48. Local 150 did not seek arbitration for grievance No. 06-31. Local 150's 56.1 Reply ¶ 39; MM Ex. A at ¶ 72.

Before the next grievance was presented, Steve Cisco ("Cisco"), the Recording-Correspondent Secretary of Local 150 and a member of the August 2, 2006 JGC, made a motion to reduce the number of JGC votes to two for the remainder of grievances to be presented that day. Local 150's Exs. Tab 10, 8.2.06 Tr. at p. 35. Vignocchi, a member of the JGC there to represent Merryman, seconded the motion. Local 150's Exs. Tab 10, 8.2.06 Tr. at p. 35. Although the motion was carried with no dissent from the JGC members, Hanlon objected on behalf of Merryman. Local 150's 56.1 Reply ¶ 28; Local 150's Exs. Tab 10, 8.2.06 Tr. at p. 35. After Hanlon's objection, Cisco, the union co-chair of the Committee stated, "This is between the Committee. Any Objections?" MM Ex. B, 8.2.06 JGC Tr. at p. 35. After no objections were raised by the Committee members, Vignocchi left the JGC hearing without providing a reason for his departure on the record. Local 150's 56.1 Reply ¶ 27; MM Ex. B, 8.2.06 JGC Tr. at p. 35.

The third grievance presented was No. 06-32. MM 56.1 Resp. ¶ 49. Hanlon objected to the JGC's jurisdiction to hear this grievance based on his assertion that Local 150 did not make a meaningful attempt to settle the matter. MM 56.1 Resp. ¶ 51. Hanlon, however, specifically stated that he was not raising an objection to the timeliness of this grievance. Local 150 Exs. Tab 10, 8.2.06 Tr. at p. 40.After the parties presented their evidence, the interested parties were asked to leave the room so that the Committee could go into executive session. MM 56.1 Resp. ¶ 53. The JGC entered an award on grievance No. 06-32 in favor of Local 150. MM 56.1 Resp. ¶ 53. The JGC directed payment of the award to Local 150's Assistance Fund. MM 56.1 Resp. ¶ 53. Hanlon objected to the JGC award to the extent that it directed payment of the award to Local 150's Assistance Fund. MM 56.1 Resp. ¶ 53.

The fourth grievance presented was No. 06-33. MM 56.1 Resp ¶ 54. Hanlon objected to the jurisdiction of the JGC to hear this grievance asserting that there had been no Step One conference. MM 56.1 Resp. ¶ 56. Hanlon also made a blanket statement that Local 150 failed to adhere to the provisions within the grievance procedures. MM Ex. B 8.02.06 Tr. p. 48: lines 4-9. After the parties presented their evidence, the interested parties were asked to leave the room so that the Committee could go into executive session. MM 56.1 Resp. ¶ 57. The JGC entered an award on grievance No. 06-33 in favor of Local 150 and directed payment of the award to Local 150's Assistance Fund. MM 56.1 Resp. ¶ 57. Hanlon objected to the JGC's award to the extent that it directed payment to Local 150's Assistance Fund. MM 56.1 Resp. ¶ 57.

The fifth grievance presented was No. 06-34. MM 56.1 Resp. ¶ 58. Hanlon objected to the JGC's jurisdiction to hear the grievance asserting that there was no Step One conference because the Union representative attempted to meet with Mr. Merryman. The Union was aware that Mr. Merryman was not authorized to deal with grievances. MM 56.1 Resp. ¶ 61. Hanlon also objected to the timeliness of the grievance asserting that: 1) Local 150 did not comply with Step Two of the grievance procedures because the grievance was not reduced to writing within seven days of the purported Step One conference as required by the parties' CBA; and 2) because he did not get notice of the Step Two conference until it was too late for him to attend. MM 56.1 Resp. ¶ 61. Lastly, Hanlon objected based on Local 150's lack of a meaningful attempt to settle the grievance. MM 56.1 Resp. ¶ 61. Hanlon made no other objections regarding grievance No. 06-34 during the August 2 hearing. MM 56.1 Reply ¶ 16. After presentation of the evidence, the interested parties were asked to leave the room in order for the Committee to convene in executive session. MM 56.1 Resp. ¶ 63. The JGC entered an award on grievance No. 06-34 in favor of Local 150 and directed payment to Local 150's Assistance Fund. MM. 56.1 Resp. ¶ 63. After the decision of the Committee, Hanlon objected to the JGC's award to the extent that it directed payment of the award to Local 150's Assistance Fund. MM 56.1 Resp. ¶ 63.

The sixth grievance presented was No. 06-35. MM 56.1 Resp. ¶ 64. Hanlon objected to the jurisdiction of the JGC to hear the grievance asserting that the grievance was untimely because it was not reduced to writing with seven days of the Step One conference and because there was "no notice." MM 56.1 Reply ¶ 18; Local 150's Exs. Tab 10 8.02.06 Tr. at p. 74. Hanlon did not elaborate on or explain what he meant by "no notice." MM 56.1 Reply ¶ 18. Hanlon made no other objections regarding grievance No. 06-35 at the August 2 hearing. MM 56.1 Reply ¶ 18. After presentation of the evidence, the interested parties were asked to leave the room in order for the Committee to convene in executive session. MM 56.1 Resp. ¶ 67. The JGC entered an award on grievance No. 06-35 in favor of Local 150 and directed payment of the award to Local 150's Assistance Fund. MM 56.1 Resp. ¶ 67; Local 150's Exs. Tab 10 8.02.06 Tr. at p. 88.

The seventh grievance (No. 06-36) and the eighth grievance (No. 06-37) were settled between the parties and Merryman drafted checks made payable to "IUOE Local 150 Assistance Fund." MM 56.1 Resp. ¶¶ 68, 69, 70, 73.

The ninth grievance presented was No. 06-38. MM 56.1 Resp. ¶76. Hanlon objected to the jurisdiction of the JGC to hear the grievance based upon its interpretation of whether the contract affords backpay. MM 56.1 Reply ¶ 19; MM Ex. B, 8.02.06 Tr. p. 128: lines 17-24. Hanlon made no other objections regarding grievance 06-38 at the August 2 hearing. MM 56.1 Reply ¶ 19. After presentation of the evidence the interested parties were asked to leave the room in order for the Committee to convene in executive session. MM 56.1 Resp. ¶ 80. The JGC entered an award in favor of Local 150 and directed partial payment to John Rabine, a former employer of Merryman, and partial payment to the "Midwest Operating Engineers Fund." MM 56.1 Resp. ¶ 80; Local 150's Exs. Tab 10 8.02.06 Tr. 132.

The tenth and final grievance presented at the August 2, 2006 hearing was No. 06-40. MM 56.1 Resp. ¶ 81. Hanlon objected to the JGC's jurisdiction asserting that the grievance was untimely. MM 56.1 Resp. ¶ 81. Hanlon made no other objections regarding grievance 06-40 at the August 2 hearing. MM 56.1 Reply ¶ 20. After presentation of the evidence, the interested parties were asked to leave the room so that the Committee could go into executive session. MM 56.1 Resp. ¶ 82. The JGC was unable to reach a majority decision on grievance No. 06-40 and advised Local 150 that it could pursue this grievance further through arbitration. MM 56.1 Resp. ¶ 82. Pursuant to the parties' CBA, grievance No. 06-40 was submitted for arbitration and the arbitrator ruled in favor of Merryman and denied the grievance. MM 56.1 Resp. ¶ 82-83. Merryman asserts that it spent $4,759.30 in attorneys' fees and costs on the arbitration proceeding. MM 56.1 Resp. ¶ 84. The CBA does not provide that the prevailing party in an arbitration is entitled to its attorneys' fees and costs incurred in the arbitration; rather, it states that each party is to bear its own fees and costs. MM 56.1 Resp. ¶ 84.

Although aware of the case MJ Electric Inc. v. Int'l Union of Operating Engineers Local 150, No. 02 C 6541, 2003 WL 21640474 (N.D. Ill. July 10, 2003) at the time of the August 2, 2006 hearing, Hanlon did not refer to or cite to the MJ Electric case at any time during the proceedings. MM 56.1 Resp. ¶¶ 34, 35.

Merryman refused to pay the grievance awards entered by the August 2, 2006 JGC. Local 150 subsequently demanded payment of the six unpaid grievances. MM 56.1 Resp. ¶¶ 45, 53, 57, 63, 67, 80. On September 22, 2006, Merryman filed suit against Local 150, MARBA, Midwest Operating Engineers Fund, Cisco, August, Hensel, Rabine, Herron, Kresge, Dunlap, Gorman, Scully, Benson and Vignocchi alleging violations of Section 301 of the LMRA and seeking, in part, a declaratory judgment that the six monetary awards and two deadlocks reached by the JGC on August 2, 2006 be declared void as partial and outside the scope of the CBA. MM 56.1 Resp. ¶ 85.

October 25, 2006 JGC Hearing

On October 25, 2006, after Merryman filed suit against Local 150, a second JGC meeting was held to address Local 150's three remaining grievances: Nos. 06-51, 06-59, and 06-60. MM 56.1 Resp. ¶ 90. There were three JGC members representing Local 150 at the October 25, 2006 proceedings: 1) Gary Benefield, a member of Local 150; 2) Tom Ferrallo, a member of Local 150; and 3) Cisco, a member of Local 150 and union co-chairman for the JGC. MM 56.1 Resp. ¶ 5; Local 150's 56.1 Resp. ¶¶ 7, 8; Local 150's 56.1 Reply ¶¶ 3, 4, 5, 37. There were also three JGC members representing the employer at the October 25, 2006, proceedings: 1) Benson; 2) Scully; and 3) Ralph Pound ("Pound"), an employee of James McHugh Construction Company. Local 150's 56.1 Reply ¶¶ 8, 9. Scully possessed a valid owners/operators card with Local 150 at the time of the hearing. Local 150's 56.1 Reply ¶ 8. Heidi Adams, Cisco's secretary, was also present during the JGC proceedings to take notes for Cisco. MM 56.1 Reply ¶ 27. Adams served as Cisco's secretary at the October 25th hearing, but is not a member of Local 150. MM 56.1 Reply ¶ 27. In addition to the JGC members, Adams was also present during the Committee's executive sessions for the grievances presented that day. Local 150's 56.1 Reply ¶ 37; Local 150's Exs. Tab 13 10.25.06 Tr. 16. As the JGC began to retire into executive session after the first grievance was presented Hanlon, who represented Merryman during the hearing, stated, "So the four of you are staying?" referring to the three union Committee members and Adams. Cisco responded, "She's my secretary. She takes my notes, if I have any notes." MM 56.1 Reply ¶ 27; MM Ex. B, Tr. 10.25.06, p. 16; MM 56.1 Resp. ¶¶ 27, 41. Carol Lord, a MARBA employee served as the secretary for the JGC and was also present during the Committee's executive sessions. MM 56.1 Reply ¶ 35; MM Ex. C, 10.25.06 Tr. 5.

As each grievance was presented, Hanlon, on behalf of Merryman, made an objection to the jurisdiction of the JGC to hear the grievances. MM 56.1 Reply ¶¶ 21, 23, 24. Specifically, Hanlon complained that the JGC failed to comply with the provisions of the CBA and the JGC's Procedural Rules because the composition of the Committee did not comply with the CBA, the Committee members were biased because they are named defendants in Merryman's previously filed lawsuit against Local 150, Local 150 failed to comply with the grievance procedures set out in the parties CBA, and Local 150 did not engage in a meaningful attempt to resolve the grievances. MM 56.1 Reply ¶¶ 21, 23, 24; MM 56.1 Resp. ¶¶ 93, 98, 101; Local 150's Exs. Tab 13 10.25.06 Tr. 14-15, 20-22, 30.

Although aware of the case MJ Electric Inc. v. Int'l Union of Operating Engineers Local 150, No. 02 C 6541, 2003 WL 21640474 (N.D. Ill July 10, 2003)at the time of the hearing, Hanlon did not refer to or cite to this case at any time during the proceedings. MM 56.1 Resp. ¶¶ 34, 36. The JGC awarded damages against Merryman on all three grievances and directed payment to Local 150's Assistance Fund for grievances Nos. 51 and 60 and to Pat Latrofa and "Midwest Operating Engineers Fund" for grievance No. 59. MM 56.1 Resp. ¶¶ 95, 99, 103; Local 150's Exs. Tab 13 10.25.06 Tr. 16, 23, 36. Merryman refused to pay the grievance awards entered by the JGC, and Local 150 subsequently demanded payment of the three unpaid grievances. MM 56.1 Resp. ¶¶ 95, 99, 103.

The Assistance Funds to which the JGC directed the payment of various awards are funds maintained by Local 150. MM 56.1 Resp. ¶ 104; MM 56.1 Reply ¶ 25. The Assistance Funds are maintained to pay out funds, upon formal application, to union members who meet certain criteria--typically those that have fallen on "hard times." MM 56.1 Resp. ¶ 104; MM 56.1 Reply ¶ 25. The MARBA JGC frequently fashions grievance awards to be paid to Assistance Funds where it would be impossible to identify precisely which Local 150 member was harmed as a result of the signatory contractor's contract violation. MM 56.1 Resp. ¶ 105; MM 56.1 Reply ¶ 26.

Merryman now seeks a declaratory judgment that the nine monetary awards for grievance Nos. 06-30, 06-32, 06-33, 06-34, 06-35, 06-38, 06-51, 06-59 and 06-60 and the two deadlocks reached by the JGC, grievance Nos. 06-31 and 06-40 be declared void and unenforceable because the JGC exceeded the scope of its authority in rendering the awards. MM 56.1 Resp. ¶ 1. In response, Local 150 has filed a counter-claim seeking enforcement of nine of the eleven awards Merryman seeks to vacate. MM 56.1 Resp. ¶ 2.

STANDARD OF REVIEW

On cross-motions for summary judgment, each movant must satisfy Federal Rule of Civil Procedure 56's requirements. See Cont'l Cos. Co. v. Northwestern Nat'l Ins. Co., 427 F.3d 1038, 1041 (7th Cir. 2005). Summary judgment is proper when "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("'Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").

DISCUSSION

I. Waiver of Arguments

As an initial matter, Local 150 asserts that Merryman has waived many of the arguments it relies on to vacate the JGC's grievance awards because it failed to raise objections based upon these grounds at the JGC hearings. Objections to procedural issues relating to grievances and the arbitration process are to be decided by the arbitrator. See John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964) ("Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator."). The failure to present an available argument or objection before an arbitrator waives that argument or objection in collateral proceedings to enforce or vacate the arbitration award. See United Food & Commercial Workers 100A, AFL-CIO &CLC v. John Hofmeister & Son, Inc., 950 F.2d 1340, 1343-44 (7th Cir. 1991); see also United Steelworkers of America, AFL-CIO-CLC v. Danly Mach. Corp., 852 F.2d 1024, 1027 (7th Cir. 1988) ("it was incumbent upon [the employer] to raise all arguments . . . at the arbitration proceeding"). A party to arbitration is not permitted to keep silent during arbitration and then raise an argument or objection in federal court upon losing the arbitration. See Dean v. Sullivan, 118 F.3d 1170, 1172 (7th Cir. 1997) (argument that procedural error spoiled the validity of the award was waived because it was not raised before arbitration board); see also United Steelworkers of America v. Smoke -Craft, Inc., 652 F.2d 1356, 1360 (9th Cir. 1981) (failure to raise certain claims before arbitrator waives them in confirmation proceeding), cert. denied, 455 U.S. 1021 (1982); Cook Industries, Inc. v. C. Itoh & Co., 449 F.2d 106, 107-08 (2nd Cir. 1971) (failure to object to arbitrator's bias in arbitration proceeding waives the objection on appeal), cert denied, 405 U.S. 921 (1972); Washington-Baltimore Newspaper Guild v. Washington Post Co., 367 F.Supp. 917, 919 (D.D.C. 1973) (failure to raise defense of set-off before arbitrator bars employer from asserting it to resist enforcement); Automobile Mechanics, Local 701 v. Holiday Oldsmobile, 356 F.Supp. 1325, 1328 (N.D. Ill. 1972) (failure to raise issue of oral agreement between parties before arbitrator waives argument in enforcement proceeding). To indulge a party's late arguments that were not brought to the attention of the arbitrator below would undermine the purpose of arbitration; namely, to be a ...


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