Gelb v. AIR CON REFRIGERATION AND HEATING

• Decision Date: 24 February 2005
• Docket Number: No. 1-03-2275.,1-03-2275.
• Citation: 826 N.E.2d 391,356 Ill. App.3d 686,292 Ill.Dec. 250
• Parties: Dana GELB, John E. Hill, and Don Perry, Individually and on Behalf of a Class of Similarly Situated Persons, Plaintiffs-Appellants, v. AIR CON REFRIGERATION AND HEATING, INC., Hill Mechanical Corp., Chicagoland Sheet Metal Contractors Association, Exelon Services, Inc., Johnson Ventilating Company, Air Comfort Corp., Air Dynamics, Inc., Air Supply a/c and Heating, Inc., Albert J. Wagner and Son, Inc., Amber Mechanical Contractors, Inc., American Blow Pipe Co., Inc., AMS Mechanical Systems, Inc., Atomatic Mechanical Services, Inc., B and N Heating and Air Conditioning, Bishop Heating, Inc., Builders Heating, Inc., Carey's Heating and Air Conditioning, Inc., Chicago Blow Pipe Company, Chicago Conditionaire Company, Cleats Mfg. Company, Climatemp, Inc., CSM Mechanical, Inc., Doornbos Heating and Air Conditioning, Edwards Engineering, Inc., Elgin Sheet Metal Company, F.E. Moran, Inc., Fresh Aire, Inc., GHC Mechanical, Inc., James H. Anderson, Inc., John Maier Company, Key West Metal Fabricators, Inc., Kirby Sheet Metal Works, Inc., Lathomas Mechanical, Inc., McCauley Mechanical Construction, Inc., Merchants Environmental Industries, Inc., Nelson Bros., Inc., O'Hare Engineering, Inc., Ortiz Mechanical Contractors, Inc., R.B. Hayward Company, Scarlet Glow Heating & Cooling Company, Sheet Metal Works, Inc., Stern Corp., Sun Ray Heating, Inc., Tal-Mar Custom Metal Fabricators Corp. the Heat Engineering Company, Therm Flo, Inc., Thompson Mechanical Corp., V.A. Smith Company, Villa Mechanical, Inc., William J. Perkinson Co., Inc., and Sheet Metal Workers Union Local 73, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

826 N.E.2d 391

356 Ill. App.3d 686

292 Ill.Dec. 250

Dana GELB, John E. Hill, and Don Perry, Individually and on Behalf of a Class of Similarly Situated Persons, Plaintiffs-Appellants, v. AIR CON REFRIGERATION AND HEATING, INC., Hill Mechanical Corp., Chicagoland Sheet Metal Contractors Association, Exelon Services, Inc., Johnson Ventilating Company, Air Comfort Corp., Air Dynamics, Inc., Air Supply a/c and Heating, Inc., Albert J. Wagner and Son, Inc., Amber Mechanical Contractors, Inc., American Blow Pipe Co., Inc., AMS Mechanical Systems, Inc., Atomatic Mechanical Services, Inc., B and N Heating and Air Conditioning, Bishop Heating, Inc., Builders Heating, Inc., Carey's Heating and Air Conditioning, Inc., Chicago Blow Pipe Company, Chicago Conditionaire Company, Cleats Mfg. Company, Climatemp, Inc., CSM Mechanical, Inc., Doornbos Heating and Air Conditioning, Edwards Engineering, Inc., Elgin Sheet Metal Company, F.E. Moran, Inc., Fresh Aire, Inc., GHC Mechanical, Inc., James H. Anderson, Inc., John Maier Company, Key West Metal Fabricators, Inc., Kirby Sheet Metal Works, Inc., Lathomas Mechanical, Inc., McCauley Mechanical Construction, Inc., Merchants Environmental Industries, Inc., Nelson Bros., Inc., O'Hare Engineering, Inc., Ortiz Mechanical Contractors, Inc., R.B. Hayward Company, Scarlet Glow Heating & Cooling Company, Sheet Metal Works, Inc., Stern Corp., Sun Ray Heating, Inc., Tal-Mar Custom Metal Fabricators Corp. the Heat Engineering Company, Therm Flo, Inc., Thompson Mechanical Corp., V.A. Smith Company, Villa Mechanical, Inc., William J. Perkinson Co., Inc., and Sheet Metal Workers Union Local 73, Defendants-Appellees.

No. 1-03-2275.

Appellate Court of Illinois, First District, Fourth Division.

February 24, 2005.

Rehearing Denied April 22, 2005.

Jac A. Cotiguala, Luanne M. Galovich of Jac A. Cotiguala & Associates, Robin B. Potter, of Potter & Schaffner, P.C., Joel M. Hellman, Charles Pressman, Chicago, for Plaintiffs-Appellants.

Frederick V. Lochbihler of Chapman & Cutler, Chicago, for Air Con Refrigeration and Heating, Inc.

David J. Lloyd of Rohlfing & Oberholzer, Chicago, for Hill Mechanical Corp.

James P. DeNardo of McKenna Storer, Chicago, for Chicagoland Sheet Metal.

Douglas A. Graham, Chicago, for Exelon Services.

Ronald J. Passarelli, Amy J. Pena of Andrews Koehler & Passarelli, P.C., Chicago, for F.E. Moran.

William H. Hrabek, Jr., of Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd., Burr Ridge, for AMS Mechanical.

Michael Daley of Daley & George Ltd. Chicago, for Union.

Joan Meyers of Johnson and Colmar, Chicago, for Atomatic.

Edward N. Druck of Franczek Sullivan P.C., Chicago, for Metalmaster Sheet Metal, Inc.; Air Comfort Corp.; Air Dynamics, Inc.; Albert J. Wagner & Son, Inc.; Amber Mechanical Contractors, Inc.; Bishop Heating, Inc.; Carey's Heating & Air Conditioning, Inc.; Chicago Blow Pipe Company; Cleats Mfg., Co.; Climatemp, Inc.; Fresh Aire, Inc.; GHC Mechanical, Inc.; James H. Anderson, Inc.; John Maier Co.; Kirby Sheet Metal Works, Inc.; McCauley Mechanical Construction, Inc.; Nelson Bros., Inc.; O'Hare Engineering, Inc.; Ortiz Mechanical Contractors, Inc.; R.B. Hayward Company; Stern Corporation; Sun Ray Heating, Inc.; Therm Flo, Inc.; and William J. Perkinson Co., Inc. Justice GREIMAN delivered the opinion of the court:

This cause comes to us on an appeal subsequent to our remandment to the trial court in order to allow the plaintiffs to bring a motion for class certification. See Gelb v. Air Con Refrigeration & Heating, Inc., 326 Ill.App.3d 809, 260 Ill.Dec. 421, 761 N.E.2d 265 (2001). On remand, the trial court dismissed plaintiffs' complaint on defendants' motion, and plaintiffs now appeal. For the reasons that follow, we affirm.

Plaintiff Dana Gelb (Gelb) initially filed suit in April 2000, alleging that several of the defendants conspired to violate and had been violating, since January 1997, the Illinois Minimum Wage Law (Wage Law) (820 ILCS 105/1 et seq. (West 1998)) by paying lower overtime wages than those mandated by the statute. Gelb sought an accounting of lost wages for himself and other similarly situated individuals, payment of those lost wages, a declaration that the defendants' activities were unlawful, statutory penalties, interest, and attorneys' fees.

Soon after the complaint was filed, defendants Air Con Refrigeration & Heating, Inc. (Air Con), and Hill Mechanical Corp. (Hill Mechanical) offered Gelb a settlement, consisting of his back wages plus interest, statutory penalties, and attorney fees. Gelb rejected the offer and Air Con, Hill Mechanical, and defendant Chicagoland Sheet Metal Contractors Association (Association) thereafter filed a joint motion to dismiss pursuant to sections 2-615 and 2-619(a) of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(a) (West 2000)), arguing that the settlement offer to Gelb removed the case or controversy as to Gelb and rendered the case moot. The trial court granted the motion and Gelb appealed.

This court reversed the trial court's dismissal order and remanded, finding that Gelb had not been allowed sufficient time to file a motion for class certification before defendants had tendered their settlement offer and, thus, that the settlement offer did not render the case moot. Gelb, 326 Ill.App.3d at 821-22, 260 Ill.Dec. 421, 761 N.E.2d 265.

On remand, plaintiffs filed a second amended complaint, alleging that they had been employed by several of the defendants and that: (1) all named defendants violated section 4a of the Wage Law by failing to pay time-and-a-half for overtime hours worked by plaintiffs, specifically by making deductions from plaintiffs' regular wages prior to multiplying overtime hours by the premium rate (count I); and (2) as members of the Association, which acted as its members' bargaining agent for purposes of negotiating with the plaintiffs' union, several of the defendants conspired to calculate and pay overtime wages below the rate required under the Wage Law (count II). Plaintiffs also proposed to join several nonemployer defendants and allege that each of them had been acting pursuant to a common scheme with regard to calculating and paying overtime wages, and to seek joint and several liability against each defendant for all unpaid wages, punitive damages, and prejudgment interest (count III). The trial court denied plaintiffs leave to add count III to the complaint.

Defendants Exelon and Hill Mechanical tendered settlement offers to plaintiffs Gelb and John Hill (Hill), consisting of the allegedly unpaid overtime wages due, prejudgment interest, statutory and punitive damages, and attorney fees. Gelb and Hill each rejected the defendants' offers.

Several defendants filed motions to dismiss pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 2002). Air Con, Hill Mechanical, Exelon, and the Association argued that plaintiffs were preempted from seeking damages in state court because their claim was governed by the collective bargaining agreement (Collective bargaining agreement) the plaintiffs' union had entered into with the Association, pursuant to section 301 of the Labor Management Relations Act (29 U.S.C. § 185) (2000) (LMRA) and section 8 of the National Labor Relations Act (29 U.S.C. § 158) (2000) (NLRA). Air Con, Hill Mechanical, Exelon, and the Association also contended that plaintiffs lacked standing to seek the remedies of interest on unpaid wages and punitive damages and that plaintiffs Gelb's and Hill's individual claims against them should be dismissed because they had tendered settlement offers to each plaintiff, rendering their individual actions moot. In another motion, the same defendants argued that the complaint should be dismissed because plaintiffs failed to join their union as a necessary party, because count II failed to allege a conspiracy, and because the Wage Law's statutory scheme did not encompass conspiracy claims. Defendant F.E. Moran, Inc., filed a similar motion.

Defendant Atomatic Mechanical Services, Inc. (Atomatic) filed its own motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2002)), arguing that plaintiffs' complaint failed to state a cause of action upon which relief could be granted, in that count II failed to allege acts sufficient to constitute a conspiracy. Attached to defendants' motions to dismiss were copies of the collective bargaining agreement, which provided tables of scaled wage deductions for union members as well as a grievance clause requiring employees to submit complaints to arbitration. In all, 24 other defendants joined the motions to dismiss.

The trial judge granted the motions pursuant to sections 2-619(a)(1) and 2-619(a)(9), finding that: (1) Gelb's and Hill's individual claims were moot as the result of the settlement offers by Exelon and Hill Mechanical; (2) under the Wage Law, plaintiffs did not have standing to seek punitive damages and their conspiracy claim was precluded; (3) plaintiffs' Wage Law claims were preempted by federal law because assigning liability would require interpretation of the Collective bargaining agreement; and (4) plaintiffs were barred from pursuing legal action because they failed to pursue the administrative remedies provided in the Collective bargaining agreement. Plaintiffs' motion for class certification was still pending at the time of dismissal.

On appeal, plaintiffs contend that: (1) their claims under the Wage Law are not preempted by federal labor laws; (2) they were not required to submit their grievances to arbitration under the collective bargaining agreement; (3) the parties that plaintiffs sought to join that did not directly employ the plaintiffs could be joined as co-conspirators for purposes of a class action; (4) the trial court abused its discretion in denying plaintiffs leave to attach their proposed count III to the complaint; (5) they may seek punitive damages...