Ameren Illinois Company v International Brotherhood of Electrical Workers, Local Union No. 51

Filing 18

OPINION Entered by Judge Sue E. Myerscough on 03/07/2018. SEE WRITTEN OPINION. Plaintiff's Motion for Summary Judgment (d/e 12 ) is GRANTED and Defendant's Motion for Summary Judgment (d/e 13 ) is DENIED. The Clerk is DIRECTED to enter judgment in favor of Plaintiff, vacating the arbitration award and remanding the case for further arbitration proceedings consistent with this decision. THIS CASE IS CLOSED. (DM, ilcd)

E-FILED

Friday, 09 March, 2018 11:42:33 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
AMEREN ILLINOIS COMPANY,

)
)
Plaintiff-Counterdefendant, )
)
v.
)
)
INTERNATIONAL BROTHERHOOD )
OF ELECTRICAL WORKERS,
)
LOCAL UNION NO. 51,
)
)
Defendant-Counterplaintiff. )

No. 3:17-CV-03163

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the parties’ cross-motions for
summary judgment (d/e 12, 13). Plaintiff’s Motion for Summary
Judgment (d/e 12) is GRANTED, and Defendant’s Motion for
Summary Judgment (d/e 13) is DENIED. The Arbitrator’s award
does not draw its essence from the collective bargaining agreement
because the Arbitrator applied his interpretation of external state
law. The arbitration award is VACATED, and the case is
REMANDED to the Arbitrator for further arbitration proceedings
consistent with this Opinion.

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I. INTRODUCTION
Plaintiff Ameren Illinois Company (the Company) is an Illinois
corporation that provides gas and electric services to customers in
Illinois. The Company employs linemen who are members of
Defendant International Brotherhood of Electrical Workers, Local
Union 51 (the Union). The Company’s linemen are covered by a
collective bargaining agreement (the Agreement) between the
Company and the Union, which contains an arbitration provision.
In June 2016, the Union filed a grievance protesting the
termination of one of the Company’s employees. The grievance was
not resolved, and the matter proceeded to arbitration. Following an
arbitration hearing, the arbitrator overturned the employee’s
termination and reduced the discipline.
In July 2017, the Company filed a Complaint to Vacate
Arbitration Award (d/e 1). The Company alleges that the arbitrator,
by interpreting and applying external law, failed to draw the essence
of his award from the Agreement. In August 2017, the Union filed
an Answer and a Counterclaim for enforcement of the arbitrator’s
award. The Union also seeks attorney’s fees. Both parties have
filed motions for summary judgment.
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II. JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331,
1337 and 29 U.S.C. § 185. Venue is proper pursuant to 28 U.S.C.
§ 1391 and 29 U.S.C. § 185. See 29 U.S.C. § 185(a) (“Suits for
violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce . . . may
be brought in any district court of the United States having
jurisdiction of the parties, without respect to the amount in
controversy or without regard to the citizenship of the parties.”); 29
U.S.C. § 185(c) (providing that a district court has jurisdiction of a
labor union in the district in which the labor organization
maintains its principal office or any district in which its authorized
officers or agents are engaged in representing or acting for employee
members).
III. LEGAL STANDARD
Summary judgment is proper if the movant shows that no
genuine dispute exists as to any material fact and that the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The movant bears the initial responsibility of informing the court of
the basis for the motion and identifying the evidence the movant
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believes demonstrates the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). No
genuine issue of material fact exists if a reasonable jury could not
find in favor of the nonmoving party. Brewer v. Bd. of Trs. of the
Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). When ruling on a
motion for summary judgment, the court must consider the facts in
the light most favorable to the nonmoving party, drawing all
reasonable inferences in the nonmoving party's favor. Blasius v.
Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016).
IV. FACTS
The following facts are taken from the parties’ statements of
undisputed facts, the parties’ Agreement, and the arbitration
award. The facts of this case are largely undisputed.
The Company and the Union are parties to an Agreement that
was effective July 1, 2012, through June 30, 2017, and extending
to August 31, 2017 by the parties’ mutual agreement. Section 4 of
the Agreement, titled “Loss of Seniority,” provides that an
employee’s seniority terminates under several circumstances,
including “[d]ischarge for cause.”

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The Agreement includes a grievance and arbitration
procedure, which provides for the arbitration of differences arising
between the Company and the Union during the term of the
Agreement. The arbitration clause contains the following provision:
The arbitrator’s decision shall be final and binding on all
parties. In considering any dispute under this provision,
the arbitrator shall have no authority to amend, delete
from, or add to this agreement.
The Company promulgated and implemented a Workplace
Violence Policy.1 The Policy applies to all of the Company’s
employees, applicants, customers, contractors, vendors, and
persons visiting any of the Company’s facilities. The Policy
prohibits “[c]onduct by or against an employee . . . that may
reasonably be considered threatening intimidating or aggressive[.]”
The Policy lists representative, non-exclusive examples of conduct
that violates the Policy, including, “threatening another individual
or threatening, talking[,] or joking about engaging in behaviors that
harass, intimidate or inflict harm upon another individual.”

The Record does not establish when this Policy was originally enacted. The
copy included in the Record reflects that the Policy was revised and re-issued
on June 1, 2015.
1

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The Policy also bans all unauthorized weapons: “Ameren
prohibits the possession of unauthorized weapons by an employee,
customer, vendor, contractor, or visitor while on Company property
including in vehicles located on Company parking lots . . . .”
“Unauthorized weapons” is defined to include guns, and “authorized
weapons” is defined as those weapons sanctioned for use by the
Company. The Policy also provides that, if the Company finds a
violation of the Policy occurred, “appropriate disciplinary action will
be taken, up to and including discharge.”
On June 27, 2016, the Company terminated the employment
of Crew Leader Brian Knox (the Grievant), a member of the
collective bargaining unit represented by the Union. According to
the Company, the Grievant was terminated for making statements
that were threatening, intimidating, and aggressive toward a
supervisor and for having an unsecured weapon—a handgun—in
his vehicle on the Company’s property.
The Union filed a grievance pursuant to the Agreement
protesting the Grievant’s termination. When the parties were
unable to reach an agreement to resolve the dispute, the Union
requested arbitration of the grievance.
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On March 24, 2016, Arbitrator George R. Fleischli held a
hearing. The parties agreed that the issue before the Arbitrator was
whether the Company had just cause for the termination of Knox
and, if not, what was the appropriate remedy.
In July 2017, the Arbitrator issued an Award finding that just
cause for termination did not exist and that the appropriate remedy
was a 30-day suspension. The Arbitrator found that the Company
did not meet its burden of proving that the Grievant “made
statements that were ‘threatening, intimidating[,] and aggressive’ so
as to constitute a violation of the” Workplace Violence Policy.
Award at 41 (d/e 13-3). The Arbitrator found that neither
statement attributed to the Grievant constituted a threat of physical
harm or the possible use of weapon. Id. at 45. The record also
established that the Grievant’s behavior was unusual and out of
character, and the Grievant’s record was essentially free of
discipline, except for a written reprimand for an accident that
occurred approximately 10 years earlier. Id. at 45-46. The
Arbitrator also noted that the Grievant recognized that his behavior
was inappropriate and vowed not to repeat such conduct in the
future. Id. at 46.
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As for the handgun in the Grievant’s vehicle, the Arbitrator
found that the Grievant did possess a handgun in his vehicle while
the vehicle was parked on the Company’s property and that the
Grievant “violate[d] the letter” of the Workplace Violence Policy.
Award at 41. The Arbitrator also noted that the fact that the
Grievant may not have known the firearm was in his vehicle was a
factor that should be taken into account, along with the Grievant’s
careless disregard for the rule. Id.
The Arbitrator then considered whether an arbitrator can
consider outside law that overrides an employer’s established rule.
Id. at 42. After considering the “longstanding debate among
arbitrators” about whether it is appropriate for arbitrators to
consider “outside law” when interpreting the terms of a collective
bargaining agreement, the Arbitrator determined that an arbitrator
could consider such law. Id. at 42-44. The Arbitrator then found
that the Illinois Firearm Concealed Carry Act2 (the Concealed Carry

Section 66/65 of the Illinois Firearm Concealed Carry Act prohibits a licensee
from knowingly or carrying a firearm on or into several locations. 430 ILCS
66/65(a). Section 66/65(b) provides: “Notwithstanding subsections (a), (a-5),
and (a-10) of this Section except under paragraph (22) or (23) of subsection (a),
any licensee prohibited from carrying a concealed firearm into the parking area
of a prohibited location specified by subsection (a), (a-5), or (a-10) of this
Section shall be permitted to carry a concealed firearm on or about his or her
2

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Act) prohibited the Company from enforcing its rule prohibiting the
possession of weapons on Company property, including in vehicles
located on Company parking lots, because the Grievant held a
concealed carry license. Id. at 44. The Arbitrator concluded:
For the above reasons, the Arbitrator has found that the
Grievant did not threaten Jones as alleged and that,
under Illinois law, the Employer cannot discipline him for
leaving a gun in his car while in its parking lot. Under
these circumstances, it is appropriate for the Arbitrator
to overturn [the Grievant’s] termination and reduce the
discipline to a level of progressive discipline more
commensurate with these findings.
Id. at 46. The Arbitrator concluded that “a suspension of 30 days,
combined with a warning that repeated conduct of the same
character will result in his immediate discharge” was the

person within a vehicle into the parking area and may store a firearm or
ammunition concealed in a case within a locked vehicle or locked container out
of plain view within the vehicle in the parking area. A licensee may carry a
concealed firearm in the immediate area surrounding his or her vehicle within
a prohibited parking lot area only for the limited purposes of storing or
retrieving a firearm within the vehicle’s trunk. For purposes of this subsection,
‘case’ includes a glove compartment or console that completely encloses the
concealed firearm or ammunition, the trunk of the vehicle, or a firearm
carrying box, shipping box, or other container.” 430 ILCS 66/65(b). Section
66/65(a-10) provides that an owner of private real property may prohibit the
carrying of concealed firearms on property under his control but must post a
sign in accordance with subsection (d), unless the property is a private
residence. 430 ILCS 66/65(a-10). The parties do not dispute that the
Company did not post a sign.

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appropriate punishment and ordered reinstatement of the Grievant.
Id.
The Company has failed and refused to abide by the
Arbitrator’s Award and commenced this action. The Union has filed
a counterclaim asking that the Court enforce the award and award
attorney’s fees.
V. ANALYSIS
Review of an arbitrator’s decision is very limited. See Arch of
Ill., Div. of Apogee Coal Corp. v. Dist. 12, United Mine Workers of
Am., 85 F.3d 1289, 1292 (7th Cir. 1996). A court must enforce an
arbitrator’s award so long as the award “draws its essence from the
contract,” even if the court believes the arbitrator’s decision is
wrong. United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29,
36 (1987).
An arbitrator’s award “draws its essence from the contract” if
it is based on the arbitrator’s interpretation of the contract, even if
that interpretation is unsound. Ethyl Corp. v. United Steelworkers
of Am., AFL-CIO-CLC, 768 F.2d 180, 184 (7th Cir. 1985). If,
however, the arbitrator “based his award on some body of thought,
or feeling, or policy, or law that is outside the contract (and not
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incorporated in it by reference),” then the award does not draw its
essence from the contract. Id. at 184-85 (internal citations omitted)
(suggesting that the test would have been better stated as
determining “whether the arbitrator had exceeded the powers
delegated to him by the parties”). Any reasonable doubt whether
the arbitration award is based upon a contractual interpretation is
resolved in favor of enforcing the award. Jasper Cabinet Co. v.
United Steel Workers of Am., AFL-CIO-CLC, Upholstery & Allied
Div., 77 F.3d 1025, 1029 (7th Cir. 1996). When interpreting an
agreement, the arbitrator may properly consider the practices of the
industry and the law of the shop, which are “equally a part of the
collective bargaining agreement although not expressed in it.”
United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363
U.S. 574,581-82 (1960); see also Tootsie Roll Indus., Inc. v. Local
Union No. 1 Bakery, Confectionery & Tobacco Workers’ Int’l Union,
832 F.2d 81, 84 (7th Cir. 1987) (consideration of the law of the shop
is only appropriate to interpret ambiguous contract terms).
In this case, the Company argues that the Arbitrator’s award
fails to draw its essence from the Agreement because the Arbitrator
ignored the Workplace Violence Policy and instead applied his own
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interpretation of external law, the Concealed Carry Act. The Union
argues that the parties asked the Arbitrator to interpret the
contractual phrase “just cause” and to consider the Workplace
Violence Policy and the Concealed Carry Act when doing so.
Therefore, according to the Union, the award draws its essence from
the Agreement.
The Court finds that the Arbitrator’s award does not draw its
essence from the Agreement. Despite finding that the Grievant’s
possession of a firearm in his vehicle technically violated the Policy
(Award at 41), the Arbitrator determined that the Company could
not enforce its Workplace Violence Policy in light of the Concealed
Carry Act. Award at 44. The Court recognizes that the Arbitrator
did not specifically find good cause to terminate pursuant to the
Workplace Violence Policy. See Arch Ill., 85 F.3d at 1293 (noting
that a court can refuse to enforce the award if the arbitrator found
just cause to discharge but then stated “something to the effect of
‘fairness dictates’” that the employee should not have been
discharged). Nonetheless, the Arbitrator’s award unambiguously
reflects that the Arbitrator based his decision on noncontractual
grounds. Id. (a court cannot reject an award unless the arbitrator’s
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decision “unambiguously reflect[s] that the arbitrator based his
decision on noncontractual grounds”).
In this case, the Arbitrator unambiguously based his decision
on his interpretation of an external law, the Concealed Carry Act.
Nothing in the parties’ Agreement allowed the Arbitrator to consider
external law. In fact, the Agreement specifically provided that the
Arbitrator could not “amend, delete from[,] or add” to the
Agreement. Agreement Art. III, Sec. 2. The Arbitrator’s award
exceeded his authority because the parties’ Agreement did not allow
the Arbitrator to consider external law. See Alexander v. GardnerDenver Co., 415 U.S. 36, 57 (1974) (“The arbitrator, however, has
no general authority to invoke public laws that conflict with the
bargain between the parties.”); Roadmaster Corp. v. Prod. & Maint.
Emps.’ Local 504, Laborers’ Int’l Union of N. Am., AFL-CIO, 851
F.2d 886, 889 (7th Cir. 1988) (“When a contract . . . specifically
limits an arbitrator’s subject matter jurisdiction, the arbitrator
should restrict his consideration to the contract, even if such a
decision conflicts with federal statutory law.”).
The Union argues that both parties recognized that the
Workplace Violence Policy “implicated” the Concealed Carry Act and
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submitted arguments on the issue. Def. Mot. at 10 (d/e 13). The
Union asserts that the Company cannot now argue that the
Arbitrator had no authority to decide an issue the parties put before
him.
The Court finds that the Company did not waive or forfeit its
objection to the Arbitrator considering the Concealed Carry Act.
The Arbitrator’s award shows that the Company did not agree to
have the Arbitrator consider the Concealed Carry Act but, in fact,
argued that the Arbitrator should not consider the external law.
See Award at 30 (setting forth the Company’s argument that the
Arbitrator “should limit his consideration to the application of the
policy to the Grievant’s conduct and not the impact of external law
on the vitality of that policy”); Award at 42 (noting the Company’s
argument that “the Arbitrator’s authority is limited to the proper
interpretation and application of the collective bargaining
agreement” and should limit his consideration to the application of
the terms of the Workplace Violence Policy).
The Union also argues that the Arbitrator did not consider the
Concealed Carry Act as part of his “just cause” analysis. According
to the Union, the Arbitrator’s consideration of the Concealed Carry
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Act was ‘nothing more than an evidentiary ruling that cannot serve
as the basis for vacating the Award.” Def. Mot. at 11 (d/e 13). The
record does not support that conclusion. The Arbitrator did not
“exclude” the handgun from consideration due to the Concealed
Carry Act. Instead, the Arbitrator found that, under the Concealed
Carry Act, the Company could not discipline the Grievant for
leaving a handgun in his car while in the Company’s parking lot
because the Grievant held a concealed carry license. See Award at
44, 46.
Because the Arbitrator based his award on a law that was
outside the Agreement, his award does not draw its essence from
the Agreement. The Court VACATES the Arbitrator’s award and
REMANDS this cause to the Arbitrator for further proceedings
consistent with this Opinion. See Young Radiator Co. v. Int’l Union
UAW, 734 F.2d 321, 326 (7th Cir. 1984) (noting that “courts have
the power to remand to the arbitrator where appropriate”).
VI. CONCLUSION
For the reasons stated, Plaintiff’s Motion for Summary
Judgment (d/e 12) is GRANTED and Defendant’s Motion for
Summary Judgment (d/e 13) is DENIED. The Clerk is DIRECTED
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to enter judgment in favor of Plaintiff, vacating the arbitration
award and remanding the case for further arbitration proceedings
consistent with this decision. THIS CASE IS CLOSED.
ENTERED: March 7, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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