AMERICAN
ARBITRATION ASSOCIATION
In the Matter of the Arbitration Between:
KONE, INC.
and
INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS
Grievance of the Company:
Work Jurisdiction,
Installation of
Balustrade Brackets
AAA Case No. 33 300 00336 02
Before M. David Vaughn, Arbitrator
OPINION AND
AWARD
This proceeding takes place
pursuant to Article XV of the collective bargaining agreement ("the
Agreement") in effect from July 9, 2002 to July 8, 20071
between the KONE, Inc. (the "Company")2 and the International
Union of Elevator Constructors (the "Union" or "IUEC")
(collectively, the Company and the Union are the "Parties" to the
proceeding) to resolve a grievance filed by the Company dated March 6, 2002.
The grievance protests the alleged countermanding of the Company's instructions
to its bargaining unit employees by the Union's Local Business Representative
and the Representative's direction to those employees that they remove and
reinstall/realign balustrade brackets from a model ECO 3000 escalator. The
Parties were unable to resolve the grievance through the steps of the
negotiated grievance process; and the Company invoked arbitration. From a list
provided by the American Arbitration Association ("AAA") and in
accordance with its rules and the procedures of the Parties, I was selected to
arbitrate the dispute.
A hearing was conducted on May 1,
2003 at Orlando, Florida at which the Company was represented by Peter Robb,
Esq. of the law firm of Downs Rachin Martin PLLC and the Union by Robert
Matisoff, Esq. of the law firm of O'Donoghue & O'Donoghue. The Parties
stipulated at the outset of the hearing that the matter is properly in
arbitration and before me.
____________________
1 The grievance at issue arose under the
predecessor Agreement. The Parties stipulated that the governing language is
unchanged from the prior Agreement to the 2002-2007 Agreement.
2 The Company is the successor to Montgomery Kone
and Montgomery Elevator Company. The Company and its predecessors are/were
parties to collective bargaining agreements; however, prior to the Agreement at
issue herein, the Company and its predecessors were members of the National
Elevator Industry, Inc. ("NEII") a multi-employer association which
negotiated collective bargaining agreements with the IUEC on behalf of its
members, including the Company's predecessors.
In the hearing, the Parties were
each afforded full opportunity to present testimony, documentary and other
evidence and to cross-examine witnesses and challenge documents and other
evidence offered by the other. For the Company testified Installation
Development Manager Barry McClintock and Director Employee and Labor Relations
Joseph Sefula. For the Union testified Local 4 Business Manager Michael Langer,
Union General President Dana Brigham, and Business Agent for Local 139 Albert
Mitchell. Joint Exhibits 1-2, Union Exhibits 1-7, and Company Exhibits 1-7 were
offered and received into the record. All witnesses were sworn. A verbatim
transcript was prepared which, by agreement of the Parties, constitutes the
official record of the hearing. At the conclusion of the hearing, the Parties
elected to submit written post-hearing briefs.
By a Motion filed on June 26, 2003,
the Union requested postponement of the filing of briefs, the production of
certain information by the Employer in connection with post-hearing events, and
the reopening of the hearing for the taking of additional evidence. By a filing
dated June 27, 2003, the Employer opposed the Union's Motion in all respects.
The Union replied to the Opposition on June 30, 2003. The pleadings were
forwarded to me by AAA and were received on July 3 and July 8, 2003. On July 8,
2003, I issued a Decision and Order directing the Company to furnish the Union
a narrative and other information contained on the standard PONC reporting form
describing the installation of balustrade brackets and that a sealed copy of
the same information be transmitted to me.3 I declined the Union's
request for broader disclosure of documents. I also allowed the Union to
request reopening of the hearing based on a conclusion by it that the
information disclosed is directly relevant to the issues before me. Following
receipt of the Order, the Union elected not to reopen the hearing.
____________________
3 The sealed envelope has not been opened and the
contents thereof have not been considered
The Parties consulted and agreed on
a new date to submit post-hearing briefs. On July 17, 2003, upon receipt of the
last post-hearing brief, the record of proceeding closed.
The Opinion and Award is based on
the record herein and consideration of the arguments of the Parties. It
interprets and applies the Agreement.
ISSUES FOR
DETERMINATION
The Parties did not agree on a
statement of the issues. Based on the proposed statements of the issues and the
record, I find that the issues for determination are:
Did the Union violate the
applicable Agreement by countermanding the Company instructions and directing
bargaining unit members to remove, reinstall and align balustrade brackets on
ECO-3000 escalators; and/or by refusing to accept as authorized by the
Agreement Company shipment of balustrade brackets and/or other brackets on
ECO-3000 escalators held and/or positioned in place by drive pins and bump
stops? If so, what shall be the remedy?
RELEVANT
PROVISIONS OF THE APPLICABLE AGREEMENT
ARTICLE II - Recognition Clause
Par. 2. The Union recognizes that
it is the responsibility of the Company in the interest of the purchaser, the
Company and its employees to maintain the highest degree of operating
efficiency and to continue technical development to obtain better quality,
reliability, and cost of its product provided, however, that this provision is
not intended to affect the work jurisdiction specified in Article IV and other
Articles of the Agreement.
ARTICLE IV - Work Jurisdiction
Par. 1. It is agreed by the parties
to this Agreement that all work specified in Article IV shall be performed
exclusively by Elevator Constructor Mechanics, Elevator Constructor Helpers and
Elevator Constructor Apprentices in the employ of the Company.
Par. 2.
(c) It is understood and agreed that the
preassembly of all escalators, moving stairways and link belt carriers that may
be done in the factory shall include the following:
1. Truss or truss sections with
tracks, drive units, machines, handrail drive sheaves, drive chains, skirts on
the incline sections but not curved sections, step chains and steps installed
and permanently aligned.
2. Balustrade
brackets may be shipped attached but not aligned.
3. Setting of all controllers and all
wiring and conduit for the controller.
All other work on escalators,
moving stairways and link belt carriers shall be performed in the field by
Elevator Constructor Mechanics, Helpers and Apprentices either before or after
the truss or truss sections are joined and/or hoisted and placed in permanent
position. This includes any and all work not done in the factory.
Par. 9. No restrictions shall be
imposed as to methods, tools, or equipment used.
ARTICLE XIV - Strikes and Lockouts
Par. 1. It is agreed by both
parties to this Agreement that so long as the provisions herein contained are
conformed to, no strikes or lockouts shall be ordered against either party. It
is understood that this Paragraph shall be applied and construed consistent
with the provisions of Article IV, Par. 11 concerning Grievance and Arbitration
procedure.
FACTUAL
BACKGROUND AND FINDINGS
The Parties
The Company is a major manufacturer
and installer of escalators and elevators worldwide. It maintains more than 50
offices throughout the United States, including one in Orlando, Florida. The
Company operates a factory at Coal Valley, Illinois where it manufactures
escalators; the employees at that facility are represented by the International
Association of Machinists ("IAM").
The Union is the exclusive
representative of a bargaining unit composed of the Company's Elevator
Constructor Mechanics, Elevator Constructor Helpers, and Elevator Constructor
Apprentices. Employees represented by the Union and employed by the Company
install, service, maintain and repair escalators.
The Company's Escalators
Escalators are moving steps which
transport people from one floor or level to another. Most escalators, are built
around a frame known as a "truss". The truss is mounted to the
building and the moving parts of the escalator run within the truss. The
handrails and their guide tracks are supported and aligned by glass or
stainless steel panels known as "balustrades". Running the length of
the escalator, the balustrades are held in place and alignment by
"balustrade brackets". Skirts run next to the balustrade to prevent
items from being drawn into the moving parts of the escalator. The placement
and alignment of the balustrade - by means of precisely positioning the
balustrade brackets - are important to the safety and operation of the
escalator.
The Company began to manufacture
the model ECO-3000 escalator in 2001. The ECO-3000 has come to supercede the
model E-5000. The ECO-3000 was designed to meet new tighter tolerances safety
standards established by the American National Standards Institute
("ANSI"). Indeed, Mr. McClintock testified that the purpose of the
redesign incorporated into the ECO-3000 was to reduce the tolerances between
the escalator skirt and the step, thereby reducing the likelihood that items
and/or people might be caught. Mr. McClintock, who is also an engineer,
testified that he participated in the design of the ECO-3000, but that 75% of
the design was by German engineers.
"Alignment"
Union President Brigham described
alignment work as the "bedrock" of the industry. Historically,
members of the bargaining unit in the field have aligned the balustrade
brackets "in the field", that is, at the site where the installation
of the machine is to be made. Alignment consists of measuring, fitting,
drilling, and installing the balustrade brackets so that they are held in
proper alignment in all three planes. This process ensures the proper placement
of the balustrade brackets so that the escalator operates with the least risk
of malfunction, wear and/or injury.
Although the process makes use of
various machines, tools and devices, the essential work is done by hand.
Alignment is an intensive, high-skill process. Only by continued performance of
alignment in the field can the skills of bargaining unit employees be
maintained so that maintenance, repair and modernization can be properly and
efficiently accomplished, he asserted.
The Model ECO-3000 is designed and
fabricated at the factory so that the balustrade brackets are held in precise
alignment with "drive pins"4 and "bump stops"5.
Mr. McClintock testified that the factory alignment process is extremely
precise. Such positive and precision alignment facilitates meeting the
increasingly-tight tolerances required of the industry. The Company has made
several efforts, both during collective bargaining and outside it, to obtain
the right to ship balustrade brackets from the factory aligned. Those efforts
are described below. However, Mr. McClintock asserted that, after the brackets
are factory installed, they are loosened and shipped, a state of shipment which
he described as "attached but not aligned".
____________________
4 Pins which hold two or more components
together, comprised of rolled tapered steel and pounded into holes drilled into
each of the components which are smaller than the pin itself and which hold the
components together and in alignment by the outward pressure of the curled
steel.
5 designed-in physical impediments to rotating
motion which assure positive placement of a component by preventing its further
rotation or movement along a defined arc or line.
Mr. McClintock testified that he
developed the installation methods for the ECO-3000 and prepared a manual for
the conduct of that operation. He indicated that he also trained employees to
perform the installation. The KONE ECO-3000 Escalator Installation Guide
("Installation Guide") describes two procedures in order to align
balustrade brackets".
One procedure described in the installation
guide is to "align incline balustrade brackets". According to the
Installation Guide, this procedure involves: removing the bolts that hold the
"outer balustrade brackets" to the "lower balustrade
brackets", positioning the outer balustrade bracket, loosening and
tightening the appropriate bolts, forcing the outer balustrade bracket to the
appropriate bump stops, visually "checking" that there is no gap, and
tightening the bolts.
A second procedure described in the
Installation Guide is to "align lower and upper balustrade brackets".
This procedure involves: removing the bolts that hold the "outer
balustrade bracket" to the "lower balustrade bracket",
positioning the outer balustrade bracket, re-tightening bolts, loosening bolts,
clamping the "outer balustrade bracket" to the "horizontal
balustrade bracket", visually "confirming" the absence of a gap,
re-tightening bolts, and repeating the process for "upper end balustrade
brackets".
Mr. Langer testified that the lower
and upper balustrade brackets are already assembled on the ECO-3000 when it is
received in the field. He indicated that the balustrade brackets arrive
aligned, noting that they are already attached to the truss by means of drive
pins inserted tightly in holes and by means of the brackets being held against
bump stops. Bolts installed between the balustrade brackets and the parts to
which they are attached provide strength but not additional alignment if the
drive pins and bump stops remain in place. Mr. Langer stated that the brackets
on the incline are tight and that the applicable measurements are already in
tolerance. He indicated that the measurements from the truss center line were
also already done, as confirmed in the field by measurements performed by IUEC
Technicians in KONE's employ.
Mr. Langer asserted that the
ECO-3000 as received in the field does not comply with the Work Jurisdiction
provisions of the Agreement. In order to comply, he asserted, every piece
should come to the field separately. In addition, Mr. Langer asserted that
drilling the holes, installing the pins, measuring, and aligning the brackets
should all be performed by the bargaining unit members in the field. If the
balustrade brackets as shipped from the factory "aligned", instead of
merely "attached", the factory alignment must be negated and the
alignment made in the field without use of the factory-installed drive pins, he
maintained.
The Orlando Incident
In February of 2002, Mr. McClintock
was present in Orlando, Florida (the jurisdiction of the Union's Local 139) to
provide training in connection with the installation of ECO-3000 escalators at
a department store in a mall. Mr. McClintock testified that partway through the
installation of the escalator, Mr. Mitchell appeared at the job site and that a
disagreement ensued regarding whether the balustrade brackets had been
"aligned" - in addition to being "attached" - at the
factory. Mr. Mitchell alleged that the brackets had been aligned at the factory
and arrived at the job site in such condition, which he alleged to be a
violation of the Agreement. Work continued during the day while Mr. Mitchell
consulted his national office.
The following day, Mr. Mitchell
advised Mr. McClintock that the balustrade brackets had to be removed and
replaced in the field and at the job site in order to comply with the
Agreement. He indicated that the work could continue on the escalator that was
already underway, apparently using the justification of training, but he
advised Mr. Mitchell that on subsequent installations, the brackets would have
to be removed, reinstalled and realigned.
Mr. McClintock acknowledged that he
did not witness Mr. Mitchell countermand any orders to bargaining unit
personnel while he was present on the first and second days of the
installation. He testified that he had to leave prior to the beginning of work
in on the second escalator and had no knowledge of what transpired. KONE's job
site supervisor, Mr. Ben Beier, is no longer with the Company and did not
testify at the hearing nor give any written statement other than the unsigned
grievance dated March 6, 2002, which asserts
"The Local Business
Representative countermanded the company's instructions and directed employees
to remove and reinstall the ECO 3000 escalator balustrade brackets, which were
shipped attached but not aligned."
The Company requested, by way of remedy, that the Union
"Reimburse KONE for all cost
associated with removing and reinstalling the balustrade brackets. Cease and
desist from removing and reinstalling the balustrade brackets."
Mr. McClintock acknowledged that
the balustrade brackets on the second Orlando ECO-3000 were removed,
reinstalled and realigned. He described the discussion with the Company as
routine and characterized the resolution of the dispute as a normal job site
accommodation and agreement. Mr. McClintock denied having countermanded any
instruction from the Company. It does not appear that the Company treated the
incident as a refusal by any of its employees to comply with Company
instructions. The Company did not instruct employees to "obey, the
grieve" its instructions; and it did not, insofar as the record
establishes, discipline any employees in connection with the incident.
Subsequent handling of the Balustrade Brackets
The record indicates that
subsequent to this incident, bargaining unit members routinely remove the
balustrade brackets and related nuts and bolts, collect them in a common area,
and then replace them in accordance with the pre-existing procedure for
alignment. Mr. McClintock testified that he has observed such procedures at
work sites in Boston, the District of Columbia, Las Vegas, Chicago, and
Charlotte since the incident in Orlando.
Bargaining History
The evidence establishes that prior
to 1967, the collective bargaining agreement between the NEII and the Union did
not permit any pre-assembly of escalators. In 1967, those parties amended
Article IV - Work Jurisdiction to permit the use of the escalator truss as a
shipping container for certain escalator components. The apparent purpose was
to allow safe and efficient transport of the components. The components that
were attached to the truss at the factory had to be removed and aligned in the
field. In 1987, the current language of Article IV was negotiated to allow the
shipment of balustrade brackets "attached, but not aligned". Other
relevant language in Article IV remained unchanged.
The E-5000 Settlement Agreement
Both Messrs. Brigham and Langer
testified that in 1998, the Company's predecessor attempted to combine the support
and alignment for the balustrade in one bracket on the E-5000 escalator. He
indicated that the Union objected. Following discussions, the Parties entered
into a January 13, 1998 settlement agreement whereby the Company's predecessor
agreed to redesign the brackets in question and the Parties agreed to allow the
factory installation of the redesigned brackets, but then the removal and field
reinstallation of the brackets. Tr. 122-123, 127-128, 130, 167-168; UX 6.
Company Efforts to Obtain Union Consent to Factory Pre-Assembly
In connection with developing a
methodology for alignment with the IUEC, the Company made a presentation in
October 2001. The presentation was not part of the formal negotiations, but may
have been in preparation for them. The October 2001 presentation described the
claimed benefits of pre-assembly. The presentation pages also compared two
"proposals". The "initial" proposal provided for the
assembly and installation of balustrade brackets at the factory; the "revised"
proposal provided for factory installation, but not alignment, of balustrade
brackets, with field alignment required. Both proposals originated with the
Company. Mr. McClintock acknowledged that neither proposals was accepted by the
Union. The presentation was not made as part of collective bargaining, although
the proposals were different in application from the terms of the Agreement.
On April 26, 2002, prior to the
commencement of negotiations for a new collective bargaining agreement but in
anticipation of bargaining, the Company presented yet another proposal to the
Union; it would have added the words "balustrade brackets or clamps"
to the items for which pre-assembly was permitted pursuant to Article IV, Par.
2(c)1. The Union did not agree to the proposal.
Negotiations for the 2002 Agreement
The Parties subsequently negotiated
a new Agreement which became effective July 9, 2002. None of the proposed
changes to Article IV were included in the current Agreement; and the relevant
language remains and it has been since 1987. President Brigham denied that any
discussion of the station of balustrade brackets took place as a result of
proposals from the Union.
Prior Arbitration Awards
The Parties, or their predecessors,
have arbitrated the meaning of the work jurisdiction provisions of the
then-current collective bargaining agreement on several occasions over the
years.
In NEII and IUEC, Eli Rock, Arb. (1974), Otis Elevator Company began
welding at the factory certain components that had previously been bolted in
the field. The Union challenged the charge as violating its work jurisdiction.
Arbitrator Rock sustained the grievance. He noted that Article II includes the
Union's pledge to support the operating efficiency of the Company. He
concluded, however, that the work involved was not factory work within the
meaning of the work jurisdiction Article. Arbitrator Rock acknowledged that
performance of the work in the field might be more tedious and expensive, but
that was not sufficient under the facts of the case to overcome the contractual
work jurisdiction language and the negotiating history which required a holding
for the Union. The pre-1957 language before the Arbitrator was different and
more restrictive than the language at issue in this proceeding, but the principle
that alleged efficiency does not trump applicable work jurisdiction rules.
NEII
and IUEC, Bert Luskin, Arb. (1975), involved the Union's protest of factory
addition of "spot discs" on the truss of a new type of escalator.
Arbitrator Luskin found that the spot discs were designed to assist employees
in the field in leveling and locating parts for the installation of the
trusses. He concluded that the spot discs "performed an alignment function
that should be performed by [employees] in the field"; he held the
affixing of the spot discs by other than bargaining unit employees to violate
the jurisdictional rights of the bargaining unit. The pre-1957 language before
the Arbitrator was different and more restrictive than the language at issue in
this proceeding. However, the principle that factory usurpation of the
contractedly-protected alignment function through design change is not
permitted survives.
Elcor
Elevator Services Corp. and IUEC, Local 122, David P. Jones, Arb. (1991)
interpreted the post-1987 contractual language as it was used by parties in
Canada. Arbitrator Jones found that decisions under the previous contractual
language were not "helpful" because the wording of the applicable
collective bargaining agreements was "considerably different". He
found that use of the word "include" in Article 4.02.03 (the
provision corresponding to Article IV, Par. 2(c)) which described the scope of
factory pre-assembly allowed was "expansive and illustrative, not
definitive and limiting." Arbitrator Jones noted the language of Article
4.02.03 "All other work on escalators . . . shall be performed in the
field. . . . This includes any and all work not done in the factory" and
he opined that, in order to construe this language so as to give meaning to
both of the sentences, the purpose of the sentence "All other work on
escalators . . . shall be performed in the field. . . ." indicated:
(1) work not done in the factory shall be
done in the field, (2) by Elevator Constructor Mechanics, and (3) before or
after the truss sections are joined, hoisted and placed into permanent
position. Such a construction does not indicate how one determines what work
must be performed in the field, compared to the pre-assembly which can take
place in the factory: nothing in the second or third sentences directly relates
to that question.
Arbitrator Jones also noted that the language of Article
4.03.03 stated that "Work to be done in the field shall include . . .
handrails" which apparently were a subject included in the grievance. Arbitrator
Jones found that the language of Article 4.02.03 did not support the Union's
assertion that pre-assembly of components other than those enumerated in
subparagraphs 1, 2, and 3 was prohibited. While the components enumerated in
subparagraphs 1, 2, and 3 include "balustrade brackets", that
specific component does not appear to be at issue before Arbitrator Jones;
instead, the Jones grievance challenged pre-assembly of the hand rail, comb
plates, floor plates, and skirting. The Jones Award does not speak directly to
the attachment/alignment issue.
In Montgomery Kone Elevator Company Ltd. and IUEC, Local 82, Dalton
Larson, Arb. (1992), the arbitrator also interpreted the post-1987 contractual
language as it was used by parties in Canada. With respect to the attachment of
balustrade brackets, Arbitrator Larson found the evidence before him
demonstrated that more than half of the brackets in question required
"adjustment" but the rest were "sufficiently in line" that
the balustrade could be inserted "without any adjustment whatsoever".
He found further that the negotiators contemplated that "some, if not all,
of the brackets might fit into place by virtue of the design and would require
little or no adjustment". Arbitrator Larson held that the word
"aligned" could "not have been intended to turn on whether the
brackets line up in a technical sense" and that "alignment must be
taken really only to refer to the process of tightening up the bolts that
attach the brackets to the truss" and that alignment "does not refer
to the factual state of being aligned".
In NEII Thyssen-Dover Elevator Company Kone, Inc. and IUEC, David
Peterson, Arb. (2000) found that the assembly of additional beams attached
below the steel platforms of elevator machines are not part of the
"generic definition of the term bedplate" - a term with a specific
definition in the elevator industry. Arbitrator Peterson found that "the
assembly of such additional beams in the field [and] the drilling of the beams
for the attachment of deflector sheaves" was work belonging to the
bargaining unit. He further found that the pre-attachment of the beams and the
pre-drilling of the beams did not constitute allowed factory pre-assembly. The
Peterson Award applied the same contractual language that is at issue in this
proceeding and utilized the same bargaining history to take an expansive view
of the Union's work jurisdiction and a restrictive view as to the extent of
factory pre-assembly allowed.
The Grievance
On March 6, 2002, the Company filed
a grievance claiming, as indicated that Mr. Mitchell improperly countermanded
its instructions and directed its employees to remove and reinstall the ECO
3000 escalator balustrade brackets. The Company asserted that the balustrade
brackets were shipped attached, but not aligned, and that the procedure it
utilized was not in violation of the agreement. It sought from the Union
reimbursement for the costs associated with removing and reinstalling the
balustrade brackets and an order that it cease and desist from instructing
bargaining unit members to remove and reinstall brackets. The Union denied the
Company's grievance. It stated:
"Standard Agreement Art. IV
Par 2 Sec 2 balustrade brackets may be shipped attached but not aligned. Past
practices have always been everything above cord angle comes [illegible] Sec 1,
describes whats fastened and aligned permanently. Many items allowed Fastened
(not aligned) to make shipping easier." JX 2.
The grievance remained denied through the steps of the
negotiated grievance procedure. This proceeding followed.
POSITIONS OF
THE PARTIES
The positions of the Parties were
set forth at the hearing and in their post-hearing briefs. They are summarized
as follows:
The Company argues that the Union violated the Agreement by
directing its bargaining unit members to disassemble and realign the balustrade
brackets on escalators that were being installed.
KONE contends that the evidence
establishes that the balustrade brackets are attached at the factory, but not
aligned; it maintains that the balustrade brackets on the ECO 3000 are aligned
in the field, notwithstanding the use by the factory of aligning equipment, the
drilling for and installation of drive pins to hold the brackets in place and
the use of bump stops in the design. In support of this argument, it cites the
time-consuming process described in both testimony and the Installation Guide.
The Company rejects the anticipated Union arguments that the installations of
drive pins and/or bump stops constitute alignment. It argues that neither the
bracket supporting the balustrade at the bottom nor the bracket incline have
any pins or dowels, although it acknowledges that the multi-purpose bracket at
the top of the escalator does have pins. As to the use of bump stops, the
Company asserts that the term was never defined. In addition it contends that
certain bolting operations - which it opines might constitute bump stops - are
a necessary part of field alignment. Moreover, the Company asserts that in the
E-5000 settlement agreement, the Union accepted bolting as sufficient field
alignment.
The Company contends that the prior
arbitration decisions support its position. It argues that the Rock Award is
narrow, confined to certain elevator components installed at two sites; it
challenges that Union's anticipated assertion that the Rock Award gave
"pre-eminence" to Article IV because it recognized that simply
bolting components in the field met the alignment requirements. KONE generally
distinguishes the Luskin Award as based on elevator, not escalator, components
and as a decision where Arbitrator Luskin found for the Union on some points
and the Company on other points.
The Company contends that the
Larson Award is directly on point and supports its claim herein. It points out
that Arbitrator Larson applies the same language that is at issue in this
proceeding to reach a conclusion that the employer's action aligning balustrade
brackets at the factory was not a violation of the Union's work jurisdiction.
The Company rejects the Union's anticipated
argument that the Company agreed to the procedure engaged in by the bargaining
unit involving the disassembly and re-attachment of the balustrade brackets. It
maintains that the Union refused to allow the ECO-3000 balustrade brackets to
be shipped and installed pursuant to the Company's direction. It denies ever
acquiescing to the Union's interpretation of the language.
The Company urges that its
grievance be sustained. It requests that I declare the balustrade brackets on
the ECO-3000 as designed, installed and shipeed by the company, are
"attached", but not "aligned" within the meaning of Article
IV, Par. 2(c) so long as they are shipped affixed by bolts to be tightened in
the field. The Company further requests that I find that the Union violated the
Agreement by its directions/suggestions to its members to disassemble the
balustrade brackets and reattach them. As to remedy, the Company requests that
the Union be ordered to make the Company whole for losses, cease and desist
from its directions/suggestions to its members to disassemble the balustrade
brackets and reattach them, and instruct employees not to continue such
actions; and that the Union be ordered to refrain from taking actions
inconsistent with the Company's ability to attach balustrade brackets in the
factory.
The Union argues that it did not violate the Agreement when it
directed its bargaining unit members to disassemble and realign balustrade
brackets on escalators as they were being installed. It contends, instead, that
the Company violated the Agreement by its use of factory-aligned balustrade
brackets.
IUEC maintains that factory
installation of the drive pins violated Article IV of the Agreement. It asserts
that the balustrade brackets were not attached by bolts and that installation
of the drive pins permanently aligned the brackets. The Union points out that
nomenclature of the Installation Guide indicates that the drive pins (which are
factory-installed) permanently align the balustrade brackets. IUEC notes that
when the Company previously attempted to combine support and alignment for the
balustrade with other functions in one bracket on the E-5000, the Union
objected and the result was the January 13, 1998 settlement agreement wherein,
the Union asserts, the Company agreed to allow field drilling and installation
of drive pins. The Union also cites the Peterson Award, contending that the
Award held, in part, that permanently joining elevator components in the
factory which had traditionally been installed separately violated the
Agreement.
The Union contends that factory
installation of bump stops also violates Article IV of the Agreement. It
maintains that the evidence establishes that such stops serve to align the
outer balustrade brackets. IUEC also notes the Installation Guide's indication
that alignment of the incline brackets is accomplished by forcing the outer
bracket to the bump stops on the multipurpose bracket and then tightening the
bolts. The Union argues that the bump stops are like in function to the
"spot discs" which were found by Arbitrator Luskin to impermissibly
eliminate or reduce the Union's traditional alignment work.
IUEC maintains that the Company's
violations of the Agreement are neither justified nor privileged. It contends
that while the use of drive pins and bump stops might be more efficient, less
costly, or result in better escalator quality or reliability, the language of
Article II, Par. 2 of the Agreement makes clear that such considerations do not
trump the work jurisdiction provisions of Article IV. The Union argues that the
use of bump stops and drive pins is not merely the product of more precise
fabrication methods, but instead is a design decision which in turn deprives
bargain unit of the alignment work which the Agreement reserves to them.
The Union asserts that the Company
is attempting to gain through arbitration what it failed to achieve in
negotiation. It argues that if KONE desires to align balustrade brackets in the
factory, it must obtain that right at the bargaining table. IUEC notes that the
Company has repeatedly attempted to obtain precisely this right in negotiations
and in presentations outside of formal negotiations since the applicable
language was introduced but has failed; it argues that if the Company believed
that it had the right to take the action at issue, then it would not have
continued to make proposals to the Union which would have given it that right.
The Union also points out that the Company never asserted that it had the right
to take the action at issue in consequence of the arbitration decisions issued
in Canada.
The Union urges that the Canadian
decisions issued by Arbitrator Jones and Lawson be disregarded. It maintains
that they were issued under a different bargaining relationship and that the
agreements at issue therein evolved under those different relationships and
have a different history that led to the language at issue here. The Union
contends that the Larson Award was simply wrong" in concluding that
"alignment" referred only to tightening up bolts; and it asserts that
the Larson Award did not take into consideration the Luskin or Rock Awards.
IUEC argues, in addition, that the Company did not consider the Larson Award to
be controlling because KONE never raised it in negotiations and KONE entered
into the January 13, 1998 settlement Agreement. The Union contends that there
is no indication in the Larson Award that the brackets on the escalators at
issue before Arbitrator Larson were aligned by drive pins and bump stops -
rather than precisely crafted components. IUEC argues that it is therefore
uncertain that Arbitrator Larson would have arrived at the same conclusion if
faced with the situation at issue here, that is: that bolting and unbolting
brackets constituted alignment in the field.
Finally, the Union rejects the
Company's assertion that Mr. Mitchell countermanded the Company's instruction
and directed employees to remove and reinstall brackets. It maintains that the
Parties did not come to an "understanding" that this issue was before
me. If I do consider it, however, the Union contends that the Company's claim
is not supported on the record. It argues that the evidence establishes that
Mr. Mitchell advised Mr. McClintock that the brackets must come off and that
Mr. McClintock was not aware of the installation procedure used after he left.
The Union contends that the evidence demonstrates that Mr. Mitchell made a job
site agreement with Mr. McClintock not to remove the brackets on the first
escalator, but to do so on the second. That, contends the Union, does not
constitute the countermanding of Company instructions.
The Union urges that the Company
violated Article IV of the Agreement by shipping the ECO-3000 escalators from
the factory with the balustrade bracket both attached and aligned. It maintains
that the Company's grievance should be denied and that the Company should be
directed to cease and desist from depriving the bargaining unit of the
alignment work which it traditionally performs in the field.
DISCUSSION AND
ANALYSIS
Scope of the Grievance, Issues before Me
It is well-established that the
party who files a Grievance contends what is to be grieved - and through the
terms of the Grievance establishes the scope of the issues in arbitration.
Here, the Company grieved the alleged countermanding of its instructions to
employees. The Union filed no counter grievance protesting the propriety of the
Company's new design, factory assemble and shipping method, but it certainly
appears that the Parties by consent broadened the scope of the grievance to
include the propriety of the Company's method of installation of the balustrade
brackets using precision installation of drive pins and designed-in bump-stops
prior to shipment. See and compare,
in this regard, the Union's statement of the issue ("whether or not the
Company shipped the escalators to the job in a way that was consistent with or
in violation of Article IV, specifically with regard to the balustrade
brackets". T.29) with that of the Company (". . . one of the fundamental
issues for this arbitration is whether balustrade brackets were shipped
attached but not aligned consistent with . . . the contract." T.11).
The Parties did not, however,
mutually agree through their handling of the Company Grievance to add the full
scope of the issues the Union seeks to arbitrate, e.g., with regard to the propriety of the challenge to certain
parts shipped attached which the Union contends are not balustrade brackets at
all. See Union's Opening Statement, T.23. I conclude that those additional questions
are not before me.
For the reasons that follow, I
conclude that the evidence does not support a finding that the Union
countermanded any instruction from the Company to leave the balustrade brackets
attached and/or not to remove the drive pins or alter the bump stops holding
the parts in alignment. Neither am I persuaded that the evidence establishes
that the manner in which the Company shipped ECO 3000 escalators with
balustrade brackets attached is consistent with the requirements of the Agreement.
The Company's grievance must, therefore, be denied.
Relationship of Article II to Article IV
In Article II, Par. 2. Of the
Agreement, the Union specifically recognizes the Company's responsibility to
"maintain the highest degree of operating efficiency and to continue
technical development to obtain better quality, reliability, and cost of its
product provided". The plain language of Article II, Par. 2 qualifies this
recognition by providing that it is "not intended to affect the work jurisdiction
specified in Article IV and other Articles of the Agreement." Thus, the
work jurisdiction of the bargaining unit which is provided for in Article IV
cannot be negated by real or perceived efficiencies or development in design,
manufacture or procedure.
Structure and Scope of Article IV
Article IV of the Agreement defines
the work jurisdiction of the bargaining unit broadly. Paragraph 1 of Art. IV
states the agreement of the Parties that all work specified in the Article be
performed by bargaining unit employees. Paragraph 2 allows certain pre-assembly
of escalators in the factory, including, in Subparagraph (c) (3) the right to
ship balustrade brackets "attached but not aligned". The clear import
of (c) (3) is that balustrade brackets may not be aligned at the factory.
Moreover, the further language of Article IV, Par. 2(c) negates any permission
which might be implied to pre-assemble escalator components not specifically
listed. It provides that:
All other work on escalators . . .
shall be performed in the field by Elevator Constructor Mechanics, Helpers and
Apprentices either before or after the truss or truss sections are joined
and/or hoisted and placed in permanent position. This includes any and all work
not done in the factory.
Thus, if a task relates to the
"work on escalators" it is the work of the bargaining unit and is to
be performed in the field, unless the task falls within the exceptions listed
in Article IV, Par. 2(c)1, 2, or 3 and is not limited by any exception internal
to those allowed tasks. In the context of the instant dispute, I hold,
therefore, that only if the work performed at the factory constitutes
"attachment" but not "alignment" may it be performed at the
factory. Otherwise, the work is within the work jurisdiction of the bargaining
unit and must be performed in the field.
Complaint that the Union Countermanded Company Instructions in Orlando
In order to sustain the Company's
grievance in the first issue presented, the Company was obligated to prove its
charge that the Union countermanded instructions which management gave its
employees not to remove and reattach the balustrade brackets. The Company has
not sustained that burden. Mr. McClintock testified that on the first day Mr.
Mitchell came to the job site, he told McClintock that the manner in which the
Company had shipped the ECO 3000 escalators from the factory constituted
alignment of the balustrade brackets and was in violation of the Agreement.
Against Mr. McClintock's assertion
to the contrary, Mr. Mitchell informed him that he would have to check with his
Union. The record demonstrates that Mr. Mitchell did not instruct, or even
request, that the escalator already under assembly be disassembled; and it is
not disputed that at least the first escalator was placed in the mall without
removal or alignment of the balustrade brackets by bargaining unit members.
Indeed, it appears that on the second day, when Mr. Mitchell returned, he
specifically so agreed.
It is not disputed that Mr.
Mitchell told Mr. McClintock on the second day that it would be necessary that
the balustrade brackets on the second and subsequent escalators be removed and
reinstalled. However, Mr. McClintock testified that Mr. Mitchell informed him;
there is no evidence from Mr. McClintock that he or anyone else in management
specifically instructed employees to align the balustrade brackets without
disassembling them or that Mr. Mitchell instructed Company employees to proceed
in that manner. Indeed, Mr. McClintock acknowledged that he left before the
next day's work and that he did not know whether the balustrade brackets were
removed and reinstalled before alignment.
The Company's job site manager who
filed the grievance would presumably be able to give evidence with respect to
what happened, but he was not called by the Company or asked for a statement.
The mere fact that he is no longer with the Company does not excuse the Company
from making efforts to present him or show his unavailability. The unsigned
allegation in a grievance form is insufficient to constitute evidence as to
what happened on the job site.
The evidence simply does not
establish precisely how the work was performed at Orlando once Mr. McClintock
left the job site. It is clear that Mr. Mitchell asserted that the brackets
must be removed - and presumably realigned - else the Company's action would be
in violation of the Agreement. The evidence does not establish that any
instructions were issued or countermanded6. To the contrary, Mr.
Mitchell characterized the discussion with Mr. McClintock as a typical job site
agreement; and although there is no indication that management and the Union
specifically came to terms, it appears that the Parties each retained their
positions and the Orlando installation continued without further conflict.
____________________
6 Insofar as the record indicates, at no time
during the interaction between Mr. Mitchell and Mr. McClintock in Orlando or at
any time subsequent to his departure did any Company official order that the
employees align the balustrade brackets in accordance with the Installation
Guide, that they cease any removal of the brackets or alignment of the brackets
pursuant to traditional methods. Indeed, there is no indication that employees
were ever directed to leave the brackets in place when performing alignment.
The Company had the authority to to so instruct employees and to direct
performance of the alignment in accordance with the Installation Guidelines.
Employees would have presumptively been required, under the principle
"obey, then grieve", to comply with such instructions, even if they
had been advised by the Union, and believed, that such instruction would be
contrary to the Agreement. To the extent that failure was in response to a
challenge by the Union based on its position that the Company had violated the
Agreement by performing alignment work, that tends to indicate that the Company
official(s) present accepted partially or completely the Union's position with
respect to the violation. At the very least, it undercuts the Company's claim
that the Union countermanded its instructions.
Mr. McClintock testified as to
other installations in other parts of the country in which bargaining unit
members insisted that balustrade brackets shipped attached be removed and
reinstalled. Indeed, it does not appear to be disputed that regularly occurs.
However, the Company's grievance does not reach situations other than Orlando;
and there is, in any event, no indication that when the brackets are removed
and reinstalled prior to being aligned, that the procedure followed is in
contravention of specific instructions given by management. Thus, other
locations and incidents provide no support for the Company's complaint.
From the Company's failure to prove
that the Union countermanded its instructions it follows that no economic
remedy is due from the Union.
Attachment of the Balustrade Brackets Constitutes Alignment
As to the more general question
presented by the Parties - whether the Company's method of installation of the
balustrade brackets using precision installation of drive pins and designed-in
bump-stops prior to shipment complies with the Agreement - the Company argues
that the work performed at the factory constituted mere "attachment"
of the balustrade brackets and that the work that still remained to be
performed once the "attached" balustrade brackets arrived at the job
site constituted "alignment". It points to the Installation
Guidelines provision for removing bolts, measuring/positioning a balustrade
bracket, and then securing the bracket by means of a tightened bolt, and
visually checking the placement of the bracket. This, it would assert,
constitutes alignment and, since that work is still performed in the field,
leaves the factory-performed work as mere attachment. I am not persuaded.
In the first instance, the Parties
have a long course of dealing. They have, through their performance under the
series of contracts between them, defined the terms "attachment" and
"alignment" of balustrade brackets. The latter task is not merely mechanical,
but includes the step by step process of creating the alignment of the brackets
from an unaligned state, utilizing the skills, tools and procedures which have
historically been required to accomplish the result.
The Company's assertion that what
it does at the factory through the precision positioning of the brackets
through the use of precision equipment, the placement of the brackets in
precisely the position they will be when finally aligned and then the fixing of
the brackets in position through the use of precision drilled holes into which
drive pins are inserted and through the use of designed-in bump stops
constitutes mere attachment but not alignment turns the definitions of the two
terms on their heads.
Despite the length of the list of tasks
set forth in the Installation Guidelines which purport to describe the
alignment work to be performed, the tasks are merely mechanical, confirming and
inspecting an alignment already performed. The tasks described by the Company
are not the processes historically constituting alignment; and they do not
require the judgment, skill, and experience that aligning connotes, either in
its bare meaning or based on the work that constituted alignment with respect
to the E-5000 or other earlier model escalators.
The record indicates that the
ECO-3000 arrives at the job site with "drive pins" installed and
"bump stops" designed in. Notwithstanding the Company's assertion
that "bump stop" is not specifically defined, the term suggests its
meaning and the Parties appear to understand the concept. The evidence
establishes that the drive pins and bump stops place the balustrade brackets in
alignment and hold them there. Indeed, even when the drive pins are removed and
the brackets backed off from the bump stop, the realignment using those aids
is, at least by comparison, a ministerial process rather than an exercise of
skill - the skilled work has been done at the factory. Thus, the evidence
establishes that the drive pins which were installed at the factory, and the
bump stops, which were inherent in the design, functionally line up the
balustrade brackets.
The Luskin Award and Peterson Award
make clear that it is not the end result of having the proper pieces of the
structure - escalator or elevator - connected to each other that determines
whether work done at the factory was within the bargaining unit's jurisdiction.
The analysis looks to the process by which that connection occurred. As
indicated, the earlier Awards interpret the language now in Article II, Par. 2
as precluding the Company from unilaterally revising the meaning of
"alignment" simply because it produces an "operating
efficiency" or a "better quality, reliability, and cost of its
product provided".
Support for this conclusion is
found in the Company's allegation that the bargaining unit members disassembled
the balustrade brackets, separating the nuts and bolts, and then reinstalled
them as they came from the factory, apparently using traditional alignment
methods. If the reinstalled brackets were installed in a state that was the
same as how they came from the factory - and there is no challenge the fact
that the brackets were properly reinstalled - then the brackets as
"attached" at the factory were installed in such a way as to be properly
"aligned". Testimony of the Union's witnesses indicating that checks
of the factory installations confirmed their precise alignment and, when called
on the issue in Alexandria, Virginia, the Company declined to allow the
alignment of factory-installed brackets to be checked. I conclude that the
attachment of the brackets in precise alignment has been sufficiently proven
and that such attachment effectively constitutes alignment and thereby violates
Article IV, Par. 2(c)2.
Bargaining History Supports Union
The bargaining history indicates
that the Company has repeatedly sought to obtain through bargaining the
authority to include balustrade brackets among the items that it is allowed to
pre-assembled at the factory. Such pre-assembly would perforce include alignment.
The Union's rejection of such a proposal - not once, but repeatedly - as late
as March of 2002 warrants the inference that the Company knew it lacked the
authority under the terms of the Agreement to make such a pre-assembly.
Side agreements with respect to the
E5000 and the various job site practices or agreements likewise suggest the
Company's lack of conviction that it possesses authority to factory-align the
balustrade brackets in the manner at issue in this proceeding.
Prior Awards Do Not Support Company
The Company cites the Jones Award
and the Larson Award from the Canadian system in support of its position. In
the first instance, the Union argues persuasively that these awards are based
on a different bargaining relationship and a different evolution of the
relationship from that at issue in the instant grievance. There is no
indication that the Agreement shares a common bargaining history or a common
set of practices with its Canadian counterpart.
Moreover, the two Canadian awards
are dated 1991 and 1992. As noted above, the Company and its predecessors in
bargaining have repeatedly attempted, both before and after the issuance of
those Awards but without success, to obtain the authority to include balustrade
brackets among the items that it is allowed to pre-assemble at the factory. The
record documents bargaining efforts occurred in the period 1998 to 2002.
Insofar as the record indicates, the Company never relied on or even cited the
Canadian Awards to assert it already possessed the rights it sought in
bargaining. Thus, the Company's conduct undercuts its argument as to the
significance and effect of the Jones Award and Larson Award.
The Jones Award reads expansively
the word "includes" in Article II, Par. 2 of the Canadian agreement
such that work on components not included in the explicit language of the
applicable collective bargaining agreement was not required to be performed in
the field. Unlike the Jones Award, the instant case deals with work that is
provided for in the Agreement. In the instant case, Article II, Par. 2(c)2
states its own limitation, to wit, the pre-assembly performed at the factory
"include[s]" "attach[ment]" but not
"align[ment]".
The Larson Award focuses on the
notion that tightening the bolts of the balustrade brackets constitutes
"alignment". As indicated above, the understood and accepted process
by which the Parties have historically aligned the brackets would appear to be
the more reasonable focus of the concept of "alignment". Moreover, the
Larson Award could not have granted the Company the authority it sought
because, as indicated earlier, if it already possessed that authority, it would
not have expended so much effort attempting to secure it through negotiation.
The Award so reflects.
Conclusion
The Company has chosen to call what
it does at the factory "attachment" and to call what the Installation
Manual requires to be done in the field as "alignment". But calling
alignment attachment does not make it installation; and calling the simple
placement or re-placement of already-aligned pieces alignment does not convert
the tasks into alignment, as the Parties have understood and utilized the term.
Instead, the use of the phrase "attached but not aligned" suggests
most strongly that the Parties intended the term attachment specifically not to
include alignment. The evidence establishes that the Parties have defined the
terms through their long course of dealing and bargaining history. This, I am
persuaded, more credibly defines the terms they use than management's
after-the-fact efforts.
The conclusion warranted by the
evidence is that the "attachment" of balustrade brackets on the ECO
3000 which have been performed at the factory by the Company constitutes
"alignment" according to Article IV, Par. 2(c)2 and effectively guts
the task of alignment of the brackets which the Agreement reserves to
bargaining unit employees in the field. This, I hold, is not consistent with
the contractual requirements.
The Company's design and factory
alignment may well promote efficiency and safety. However, in light of the
broad work jurisdiction of the Union, the right to use those processes in lieu
of alignment of the balustrade brackets in the field must be obtained at the
bargaining table and not through arbitration.
AWARD
The Company failed to sustain its
burden to prove that the Union countermanded management instructions to
bargaining unit members to disassemble and realign balustrade brackets on
escalators as they were being installed. The Company violated the Agreement by
the manner in which it shipped balustrade brackets attached and held and/or
positioned in place by drive pins and bump stops, effectively constituting
alignment within the meaning of the Agreement. The grievance is denied
Issued at Clarksville, Maryland
this 17th day of August, 2003.
_____________________
M. David Vaughn
Arbitrator
