AMERICAN ARBITRATION ASSOCIATION
VOLUNTARY LABOR ARBITRATION TRIBUNAL
In the matter of arbitration between:
INTERNATIONAL UNION
OF ELEVATOR CONSTRUCTORS
-and-
DELTA BECKWITH
ELEVATOR COMPANY
Case Number: 11 300 03112 02
AWARD OF
ARBITRATOR
I. The Company violated a
longstanding part practice when it failed to allow some IUEC Local 4 members
holiday pay for Columbus Day in 2002. The employees who were entitled to this
holiday pay pursuant to the longstanding past practice must be made whole for
the holiday pay denied them for Columbus Day in 2002.
II. It was a violation of the 2002 -
2007 Master Agreement for Local 4 to direct its members to turn off or
otherwise disable electronic communication devices during their unpaid lunch
breaks. Local 4 is instructed to cease and desist from directing its members to
turn off or otherwise disable electronic communication devices during their
unpaid lunch breaks.
____________________________
Robert
M. O'Brien, Arbitrator
May
10, 2003
AMERICAN
ARBITRATION ASSOCIATION
In the matter of arbitration between:
INTERNATIONAL UNION
OF ELEVATOR CONSTRUCTORS
-and-
DELTA BECKWITH
ELEVATOR COMPANY
AAA Case No. 11 300
03112 02
Grievance:
(1) Employees
not paid for the Columbus Day Holiday in 2002
(2) Local 4's directed employees to turn
off or disable communication devices during their unpaid lunch breaks
STATEMENT
OF THE ISSUE
At the hearing the parties agreed to two issues:
1. Whether the Company violated
Article VI, Paragraph 2., of the collective bargaining Agreement, past practice
and/or the Local Expense Agreement by failing to pay the Columbus Day Holiday
to some IUEC Local 4 Members?
If so, what shall be the remedy?
2. Whether the Union's directive to
employees to turn off or otherwise disable electronic communication devices
during their unpaid lunch breaks violated the parties' collective bargaining
Agreement?
If so, what shall be the remedy?
PERTINENT
CONTRACTUAL PROVISIONS
ARTICLE II
Recognition Clause
Par. 1. The
Union claims and the Employer acknowledges and agrees that the Union has
supplied proof that a majority of its Elevator Constructor Mechanics, Elevator
Constructor Helpers and Elevator Constructor Apprentices have authorized the
Union to represent them in collective bargaining with the Employer.
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 VI
Holidays
Par. 1. The
following shall be designated as paid holidays: New Year's Day, Memorial Day,
Independence Day, Labor Day, Veterans' Day, Thanksgiving Day, the Friday after
Thanksgiving Day and Christmas Day.
Par. 2. In
addition, each local may retain established unpaid holidays already agreed upon
by past procedure or observed by local building trades councils or declared by
State or National Government. Any new Federal holidays such as President's Day
and Columbus Day are not to be considered as paid or unpaid holidays unless
previously celebrated by the parties to this Agreement.
ARTICLE IX
Contract Service
Par. 1. Contract
Service is hereby defined as any contact obtained by the Company for regular
examination or care of apparatus enumerated in Article IV and Article IV (A) of
this Agreement and general repairs as indicated in Article VIII, Par. 2 for a
period of not less than one (1) month. Contact Service Work shall be
exclusively performed by Elevator Constructor Mechanics, Elevator Constructor
Helpers and Elevator Constructor Apprentices....
Par. 3. It
is agreed the regular working day shall consist of eight (8) consecutive work
hours, with an unpaid lunch period, between 6 a.m. and 6 p.m., five (5) days
per week, Monday to Friday, inclusive....
Par. 8.
(a) Employees engaged in contract service
work agree they will respond to call-backs outside of their regular work hours.
The Company, the local union, and the employees shall meet and cooperate in
establishing a callback system, which will cover such issues as a list of
employees available on designated dates to respond to overtime call-backs, the
number of employees on call-back at any given time, replacements for vacations
and holidays, and trading of on-call duty....
MEMORANDUM OF
AGREEMENT
This will confirm that during the negotiations for the
collective bargaining agreement between the Company and the IUEC to be
effective July 9, 2002, the parties agreed to the following....
b) Employees on contract service
shall be required to carry and use beepers or any other designated communication
devices that permit them to be contacted and informed of an emergency call
while the employee is on the way to work at the beginning of the work day and
while the employee is on the way home from work at the end of the work day.
AGREEMENT ON EXPENSES
Local Union
No. 4
International
Union of Elevator Constructors
AGREEMENT made the 21st day of December, 1981 by
and between Local Labor Committee of the National Elevator Industry, Inc., and
Local Union No. 4 of Elevator Constructors for the purpose of establishing
expenses allowances and rates for automobile mileage.
This Agreement becomes effective December 21, 1981, and
shall remain in effect for a period of thirty (30) months, continuing
thereafter as long as satisfactory to both parties. Sixty (60) days notice in
writing shall be given by either party of their desire to change the Agreement
and such written notice shall constitute cause for meeting of both parties....
Holidays
October
Columbus Day - All
States
Except Maine,
Connecticut
BACKGROUND
The International Union of Elevator
Constructors (hereinafter referred to as IUEC or the Union) represents Elevator
Constructor Mechanics, Helpers and Apprentices at most of the elevator and
repair companies throughout the United States. These employees construct,
repair, modernize and maintain elevators and escalators.
For many years, the major national
elevator companies were represented in collective bargaining by the National
Elevator Industry, Inc. (hereinafter referred to as NEII), a multi-employer
bargaining association. NEII and the Union negotiated a series of collective
bargaining agreements that were commonly referred to as Standard Agreements.
These agreements were usually for a period of five (5) years. Smaller elevator
companies signed short form, or "me
too" agreements that for the most part replicated the Standard
Agreement.
In 2002, the NEII did not represent
the national elevator companies in contract negotiations. Rather, the IUEC
negotiated directly with the four major elevator companies (Thyssen Krupp,
Kone, Schindler and Otis) beginning in February 2002. They reached a common
contract, known as the Master Agreement that was effective from July 9, 2002 to
July 8, 2007.
North American Elevator Services
(hereinafter referred to as NAES) owns several smaller elevator companies
including the Delta Beckwith Elevator Company (hereinafter referred to as the
Company or Delta Beckwith). The Company was former as a result of a merger in
1998 between the Delta Elevator Services Corporation (hereinafter referred to
as Delta) and the Beckwith Elevator Company (hereinafter referred to as
Beckwith).
NAES is a subsidiary of United
Technologies, Inc. With minimum negotiations, NAES and the Union adopted the
2002 - 2007 Master Agreement that IUEC had negotiated with the four major
national elevator companies. In fact, according to the President of the IUEC,
negotiations were conducted over the telephone on one day. It is undisputed
that paid holidays were not discussed during that telephone conversation. NAES
adopted the 2002 - 2007 Master Agreement, which added Veterans' Day as a paid
holiday.
Local Union No. 4 of the
International Union of Elevator Constructors (hereinafter referred to as Local
No. 4) represents approximately 180 employees at Delta Beckwith. Some 35 to 40
of these employees work in the field maintaining and repairing elevators and
escalators. These contract service employees are assigned to the Company's
approximately 40 service routes.
Delta Beckwith receives about 50
calls a day from customers reporting problems with their elevators. Most of
these calls occur during regular service hours (8:00 a.m. to 5:00 p.m.).
Approximately five (5) calls a day involve emergencies. Many of the Company's
service contracts require it to respond to elevator shut downs within one (1)
hour. Contract service employees are provided Nextel direct connect telephones
and pagers to ensure that they can be reached to respond to service calls,
so-called "callbacks," from
Delta Beckwith customers. The Company requires its contract service employees
to keep these electronic communication devices on at all times during the
working day.
The Standard Agreements negotiated
by the NEII and the Union allowed local unions to negotiate special conditions,
such as Local Transportation and Expense Agreements, provided that the wage
rate in the Standard Agreement was not changed by any local negotiations. In
1981, Local 4 and the NEII negotiated an Agreement
on Expenses that became effective on December 21, 1981. The 1981 Agreement on Expenses addressed local
conditions such as mileage rates, parking reimbursement and travel zones.
The 1981 Agreement on Expenses also enumerated certain holidays to which
Local 4 members were entitled depending in which New England state they were
working. The Standard Agreements designated certain holidays for which
employees were paid. The Standard Agreements also allowed local unions
to retain established unpaid holidays already agreed upon by past
procedures or observed by local building trades councils or declared by State
or National Governments.
Local 4 retained the unpaid
holidays set forth in the 1981 Agreement
on Expenses. That Agreement could be changed with 60 days' written notice
by either party. There is no evidence in the record that either party ever
served such notice. Therefore, the 1981 Agreement
on Expenses was in full force and effect when the current Master Agreement
became effective on July 9, 2002.
Although the additional holidays
which the Standard Agreements allowed local unions to retain were to be unpaid
some employees of Delta and, to a lesser extent, some employees of Beckwith
were, in fact, paid for some of these additional holidays, including Columbus
Day. The Company was able to identity approximately 21 Local 4 employees who
were paid for the Columbus Day holiday. According to the Union, some of these
employees were granted paid holidays as an inducement to come to work with
Delta or Beckwith; others were given paid holidays after achieving ten (10)
years of service with Delta; and others were guaranteed 40 hours of pay a week
by either Delta or Beckwith when they were hired and thus were paid for the
holiday.
On May 30, 2002, the Company sent
IUEC General President Dana Brigham a letter that was referenced "MOA Expenses and Delta Beckwith Holidays."
Among other subjects, the Company informed the Union President that it had
determined that certain Local 4 employees were receiving paid holidays in
addition to the paid holidays provided by the national Standard Agreement. It
declared that those additional paid holidays would be discontinued with the new
national agreement.
The Company's May 30, 2002 letter
was received at the IUEC General President's office where an office employee
filed it. General President Brigham was unaware of the letter until November
2002, some five months later, when a dispute arose at Delta Beckwith over the
October 14, 2002, Columbus Day Holiday.
No Local 4 employee of Delta
Beckwith was paid for the October 14, 2002, Columbus Day Holiday. On October
16, 2002, Local 4 asked the Company to reconsider its decision and negotiate
this matter with it but the Company declined contending that the 2002 - 2007
Master Agreement terminated all past practices. Due to the Company's refusal to
compensate employees for the Columbus Day Holiday, Local 4 directed Delta
Beckwith's contact service employees to turn off their communication devices
during their unpaid lunch breaks. Local 4 also advised these employees to
reduce their unpaid lunch breaks from one hour to one-half hour.
On November 1, 2002, the Company's
contract service employees honored Local 4's directive and reduced their unpaid
lunch break form one hour to one-half hour and deactivated their Company
furnished communication devices during their lunch break. Delta Beckwith claims
that it made several attempts to contact contract service employees around
noontime on November 1, 2002, but there was no response. That afternoon, the
Company obtained a Temporary Restraining Order (TRO) in Federal Court
prohibiting Local 4 from instructing its members to disable their communication
devices during their lunch breaks.
On October 16, 2002, the Union
filed a grievance in which it contended that Delta Beckwith violated Article
VI, Paragraph 2., of the 2002 - 2007 Master Agreement when it did not pay
employees for the October 14, 2002, Columbus Day Holiday. The grievance came
before the undersigned Arbitrator for a hearing on February 24, 2003. At the
outset of that hearing the parties agreed to two issues for the Arbitrator to
decide. Those issues are set forth above. Based on the extensive evidence and
arguments advanced by the Union and the Company at the hearing and in their
post-hearing briefs, this Arbitrator hereby renders the following decision.
FINDINGS AND OPINION
I. Whether the Company violated
Article V, paragraph 2 of the collective bargaining Agreement, past practice
and/or the Local Expense Agreement by failing to pay the Columbus Day Holiday
to some IUEC Local 4 members?
(A) Columbus Day Holiday
There is no question that Columbus
Day is not one of the eight paid holidays set forth in Article VI, paragraph
1., of the 2002 - 2007 Master Agreement. The Union contends that it was a paid
holiday for Local 4 employees pursuant to the second sentence of Article VI,
paragraph 2., but this Arbitrator respectfully disagrees.
The plain meaning of the second
sentence in Article VI, Paragraph 2., is that if any holiday becomes a new
Federal holiday it is not to be considered a paid holiday unless it was
previously celebrated as a paid holiday by the parties to the Master
Agreement. With some exceptions to be discussed below, Local 4 employees were
never paid for Columbus Day. Therefore, Columbus Day did not become a paid
holiday for Local 4 employees pursuant to Article VI, Paragraph 2., when it
became a new Federal holiday.
Nor did Local 4's Agreement on Expenses state that
Columbus Day was a paid holiday. Rather, it was an unpaid holiday pursuant to
Article VI, Paragraph 2., which allowed local unions to retain unpaid holidays that were already agreed
upon by past procedure or observed by local building trades councils or
declared by State or National Governments. The evidence is uncontroverted that
Columbus Day was never celebrated as a paid holiday for most Local 4 members.
Therefore, it was an unpaid holiday for these employees in 2002.
While Columbus Day was never a paid
holiday for the majority of Local 4 employees at the Company, it was a paid
holiday far approximately 22 members of Local 4. Prior to 1998, Delta Elevator
Service and, to a lesser extent, Beckwith Elevator Company did compensate some
of their Local 4 employees for the Columbus Day Holiday for a myriad of
reasons. Some of these employees were paid for the holiday as part of a 40 hour
guaranteed workweek. Others were granted this benefit when they acquired 10
years of service at Delta. Still other Local 4 employees were paid for the
holiday as an inducement for them to come to work at either Delta or Beckwith.
And one employee was allowed this benefit when he agreed to transfer from
maintenance to adjusting duties.
When Delta and Beckwith merged in
1998, these employees continued to be paid for Columbus Day until 2002 when the
Company discontinued this benefit. For these employees, a paid holiday for
Columbus Day became a term and condition of their employment.
That this paid holiday was not a
benefit negotiated on behalf of these employees by Local 4 is immaterial, in
this Arbitrator's opinion. Delta Beckwith and its predecessors willingly
compensated these employees for the Columbus Day Holiday for a considerable
period of time. Indeed, some of them had been paid for Columbus Day
continuously sine the 1970's. This longstanding benefit became a term and
condition of their employment even though it was not rooted in contract
negotiations between Local 4 and their employers.
(B) The May 30, 2002 Letter
The Company argues that even if a
past practice existed regarding holiday pay, for Columbus Day, the May 30,
2002, letter that Regional General Manager Belcher sent to IUEC General
President Dana Brigham served to terminate any such practice effective with the
expiration of the predecessor collective bargaining agreement on July 8, 2002.
It is unclear from the May 30,
2002, letter precisely what Regional Manager Belcher intended when he sent this
letter to IUEC's General President. The letter referenced a "MOA Expenses and Delta Beckwith Holidays."
There was a line for Mr. Brigham's agreement. However, Mr. Brigham never signed
the document.
One could infer from this that the
letter was a proposal by the Company to discontinue additional paid
holidays beyond those in the Standard Agreement. If that was Mr. Belcher's
intent then the General President would be required to concur by affixing his
signature to the document and it would be appended to the 2002 - 2007 Master
Agreement in the same manner that some nine other bilateral agreements were
incorporated into the Master Agreement. That did not happen, however, and no
such Memorandum of Agreement was appended to the Master Agreement.
Mr. Belcher did not testify in this
arbitration proceeding so we do not know his subjective intent. It is
undisputed that he did not have any discussions with General President Brigham
about the letter before the Master Agreement
was executed on or about July 9, 2002. In fact, General President Brigham was
unaware of the document until November 2002, after the disagreement arose
between Local 4 and Delta Beckwith over pay for the Columbus Day Holiday on
October 14, 2002.
Assuming that the May 30, 2002,
letter was intended to discontinue the practice of compensating some Delta
Beckwith employees holiday pay in addition to the paid holidays set forth in
the Master Agreement the letter was ineffectual in terminating this practice,
in this Arbitrator's opinion, since it was sent to the wrong party.
The practice of allowing some Delta
Beckwith employees holiday pay in addition to the paid holidays provided by
Article VI, paragraph 1., of the Master Agreement had nothing to do with the
International Union of Elevator Constructors. Rather, it was simply a local
practice that evolved at both Delta and Beckwith companies since the 1970's.
The practice was continued when these two companies merged in 1989. Since the
practice was limited to some Local 4 employees it was Local 4 that the Company
was obligated to notify if it wished to discontinue allowing these employees
paid holidays in addition to those required by the Master Agreement.
That Local 4 was not notified by
the Company of its desire to terminate paid holidays in addition to those
provided by the Master Agreement is undisputed. There were no local option
negotiations between Local 4 and Delta Beckwith in 2002 where this matter could
have been discussed. Local 4 was never afforded the opportunity to respond to
the Company's desire to eliminate additional paid holidays until after
the Columbus Day Holiday on October 14, 2002.
For all the foregoing reasons, this
Arbitrator finds that the Company violated a longstanding past practice when it
failed to allow some IUEC Local 4 members holiday pay for Columbus Day in 2002.
Therefore, the employees who previously bad been paid for this holiday pursuant
to the longstanding past practice must be made whole for the holiday pay denied
them for Columbus Day in 2002.
II. Whether the Union's directive to
employees to turn off or otherwise disable electronic communication devices
during their unpaid lunch breaks violated the parties' collective bargaining
Agreement?
A Memorandum of Agreement
incorporated into the 2002 - 2007 Master Agreement requires employees on
contract service to carry designated communication devices while on the way to
work at the beginning of the workday and while on the way home at the end of
the workday. However, no provision in either the Master Agreement or the Local
4 Agreement on Expenses specifically
requires contact service employees to keep designated communication devices
activated during their unpaid lunch breaks. Nevertheless, it is this Arbitrator's
opinion that it was management's prerogative to require its contract service
employees to keep their designated communication devices on at all times during
their regular working day so that they could be contacted to respond to
callbacks.
In Article II, paragraph 2., of the
Master Agreement the Union recognized that it was management's responsibility
to "[m]aintain the highest degree of
operating efficiency." Implicit in this responsibility is the
Company's obligation to promptly respond to callbacks from customers at all
times, including times when contact service employees are on their lunch
breaks.
It is unnecessary to decide whether
the July 28, 1992, grievance settlement between the IUEC General President and
the NEII Executive Director imposed an obligation on all IUEC employees
nationwide to utilize communication devices whenever required to do so by their
employer since it was a well established practice at Delta Beckwith for
contract service employees to keep their designated communication devices on
during their lunch breaks.
Like pay for the Columbus Day
Holiday for some Delta Beckwith employees the practice of contact service
employees keeping their designated communication devices active during their
lunch breaks became a term and condition of their employment that could not be
unilaterally terminated.
That contact service employees are
not compensated for their lunch breaks did not relieve them of the obligation
to maintain contact with the Company during their lunch breaks to be available
to respond to callbacks. The Company must promptly respond to service calls
from its customers for obvious reasons. It is immaterial that there were
alternatives available to the Company to respond to callbacks from customers.
It was management's prerogative to require contract service employees in the
field to respond to callbacks during the regular workday, including calls
received during the contract service employees' lunch breaks.
For all the foregoing reasons, this
Arbitrator finds that it was a violation of the 2002 - 2002 Master Agreement
for Local 4 to direct its members to turn off or otherwise disable electronic
communication devices during their unpaid lunch breaks. Local 4 is instructed
to cease and desist from directing its members to turn off or otherwise disable
electronic communication devices during their unpaid lunch breaks.
AWARD
I. The Company violated a
longstanding past practice when it failed to allow some Local 4 IUEC members
holiday pay for Columbus Day in 2002. The employees who were entitled to this
holiday pay pursuant to the longstanding past practice must be made whole for
the holiday pay denied them for Columbus Day in 2002.
II. It was a violation of the 2002 -
2007 Master Agreement for Local 4 to direct its members to turn off or
otherwise disable electronic communication devices during their unpaid lunch
breaks. Local 4 is instructed to cease and desist from directing its members to
turn off or otherwise disable electronic communication devices during their
unpaid lunch breaks.
____________________________
Robert
M. O'Brien, Arbitrator
Dated: May 10, 2003
