ARBITRATION
PROCEEDINGS
AAA Case No. 15 300
00020 04
In the Matter of the
Arbitration Between
ELEVATOR TECHNOLOGIES, LLC
- and -
INTERNATIONAL UNION OF
ELEVATOR
CONSTRUCTORS, AFL-CIO
Subject: Grievance 002/62-4
SFA ¶¶ AND 11
MA Articles IV, IV(A)& VIII(A)
Dana Edward Eischen, Arbitrator
Appearances
For the Union: O'Donoghue
& O'Donoghue, LLP
by
Robert P. Curley, Esq.
Robert
Matisoff, Esq.
For the Employer: Downs Rachlin
Martin, PLLC
by
Timothy E. Copeland, Jr., Esq.
Also Present
For the Union: James
Chapman, Jr., Assistant to the General President
Robert
Kimmerle, Business Agent-Local 62
Ronald
J. Koerbel, Regional Director
For the Employer: James
Cosbey, President
Christopher
Duke, Vice President
James
Walker, Labor Relations Consultant
PROCEEDINGS
The
Parties selected me to hear this grievance arising under the terms of their
2002-2007 Collective Bargaining Agreement ("Agreement"). A hearing
was held at Syracuse, New York on August 17 and November 19, 2004,
at which both Parties were represented by Counsel and afforded full opportunity
to present oral and documentary evidence in support of their positions. The
proceeding was recorded and transcribed and the record was closed with the
submission and exchange of post-hearing briefs at the end of January 2005. The
Parties graciously granted my request for an extension of time limits to render
the Award.
ISSUES
The
parties were unable to agree on a joint submission of issue(s) for
determination in this matter. However, they mutually accepted the Arbitrator's
suggestion to frame the issue as follows:
1) Did the Company violate the Collective
Bargaining Agreement, as claimed in Grievance Number 002/62-4?
2) If so, what
should be the remedy?
Note: Grievance
No. 002/62-4, dated March 20, 2003, reads, in pertinent part:
Statement
of Grievance: "Elevator
Interiors employees were beginning to install new skins to the existing hoistway
bucks. Elevator Interiors is a nonunion company owned by Elevator Technologys
[sic] which is a union shop. Which is double breasting."
Remedy
Requested: Pay lost of wages
& benefits for a Local 62 mechanic and apprentice for five 8 hr. days.
[At the arbitration hearing,
the Parties jointly stipulated that the arbitral disposition of Grievance
Number 002/62-4 will also determine the outcome of several other identically
worded unresolved grievances, including Grievance Nos. 002/62-5, 002/62-6,
002/62-8 and 002/62-9].
PERTINENT CONTRACT
PROVISIONS
SHORT FORM AGREEMENT
WHEREAS, [Elevator Technologies]
is desirous of employing Elevator Constructor Mechanics, Helpers and
Apprentices; and
WHEREAS, the Union and its
Local Unions have qualified and skilled Elevator Constructor Mechanics, Helpers
and Apprentices;
NOW THEREFORE, it is mutually
agreed as follows:
¶ 1. That the Employer and the Union mutually
agree to be bound by the terms and conditions of the Master Agreement between Thyssen
Krupp Elevator and the International Union of Elevator Constructors (including
any attached Appendices and Letters), effective July 9, 2002 and terminating at
midnight on July 8, 2007 (hereinafter referred to as the "Master
Agreement"), a copy of which is attached and made a part hereof the same
as if they were parties thereto; and the said Employer and the Union herewith
adopt the said Master Agreement along with this Agreement as and for their
collective bargaining agreement; and that all Elevator Constructor Mechanics,
Helpers and Apprentices (herein referred to sometimes as "Mechanics ... Helpers"
and "Apprentices") hired by the said Employer are to be employed
according to the terms and conditions of said Master Agreement and this
Agreement.
¶ 2. 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. The Employer recognizes the Union as the exclusive Section 9(a) bargaining
representative of all Elevator Constructor Mechanics, Helpers and Apprentices
in his employ engaged in the installation, repair, maintenance, modernization
and servicing of all equipment and other work referred to in Articles IV and IV(A)
of said Master Agreement. The Employer recognizes the Union and its
Local Unions as a first source of manpower and will, therefore, use the Local
Union as a first source when in need of manpower in accordance with the
provisions of Article XXII of said Master Agreement.
¶ 11. In order to protect and preserve, for the
employees covered by this Agreement, all work heretofore performed by them, and
in order to prevent any device or subterfuge to avoid the protection and
preservation of such work, it is hereby agreed as follows: If and when the
Employer shall perform any on-site work of the type covered by this Agreement,
under its own name or under the name of another; as a Corporation, Company
Partnership, or any other business entity, including a joint venture, wherein
the Employer, through its officers, directors, partners, or stockholders,
exercises either directly or indirectly, management control, or majority
ownership, the terms and conditions of this Agreement shall be applicable to
all such work.
(a) All charges of violations of this
Section shall be considered as a dispute under this Agreement and shall be
processed in accordance with procedures which parallel those for the handling
of grievances and the final and binding resolution of disputes, as provided in
Article XV of the Master Agreement. Remedies for violations of this Section
shall include requiring an employer to (1) pay to affected employees covered by
this Agreement, including registered applicants for employment, the equivalent
of wages lost by such employees as a result of the violations, and (2) pay into
the joint trust funds specified in this Agreement any delinquent contributions
to such funds including interest and liquidated damages which have resulted
from the violations. The Union shall enforce a decision issued pursuant to the
grievance and arbitration process only through arbitral, judicial, or
governmental (for example, the National Labor Relations Board) channels. The Union shall not
strike to enforce a decision, award, or order issued hereunder in relation to proceedings
alleging a violation of this Section. This Section shall not be interpreted to
make remedies it specifies unavailable to the Union for violations of other
provisions of this Agreement.
(b) If, as a result of violations of this
Section, it is necessary for the Union and/or the trustees of the joint trust
funds to institute court action to enforce an award rendered in accordance with
this Section, or to defend an action which seeks to vacate such award, the
Employer shall pay any accountants' and attorneys' fees incurred by the Union
and/or fund trustees, plus costs of the litigation, which have resulted from
the bringing of such court action.
MASTER AGREEMENT
ARTICLE IV Work Jurisdiction
¶ 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.
¶ 2. ...
(v) Landing door
entrances.
¶ 3. ...
(a) Nothing contained in Article IV shall
preclude the Company from preassembling and prefabricating the following:
(9) Landing door entrance assemblies which
will be limited to struts, sills, headers, frames and associated hardware for
installation purposes: door header including tracks, hangers, and all relating
devices (adjusting and aligning to be done in the field).
¶ 9 No restrictions shall be imposed as to
methods, tools, or equipment used.
¶ 11
(a) All differences and disputes concerning
Article IV or Article IV(A) shall be settled in accordance with the grievance
procedures in Article XV.
ARTICLE IV (A) Systems, Modular and Industrial
Structures
¶ 2. The work to be
done by Elevator Constructors is as follows:
(o) Landing door
entrances.
ARTICLE VIII(A) Modernization Work
¶ 1. Modernization work is hereby defined as
any and all work performed on apparatus enumerated in Article IV and Article IV(A)
in any existing or occupied building, to bring equipment up to date, including
general repairs which are a part of a modernization job. Modernization work
shall be exclusively performed by Elevator Constructor Mechanics, Elevator
Constructor Helpers and Elevator Constructor Apprentices.
ARTICLE XV Arbitration
¶ 1 Any difference or dispute regarding the
application and construction of this Agreement, shall be referred to as a "grievance"
and shall be resolved under the following procedure. Both, parties commit to
making an earnest effort to resolve differences in accordance with the
procedure outlined below:
¶ 5. Impartial Arbitration. If the grievance
is not settled by the National Arbitration Committee, the Union or the
Employer, within fifteen (15) working days of the Employer's (or Union's)
disposition as outlined in Paragraph 4, may appeal the grievance to impartial
arbitration. Such appeal shall take the form of a letter to the Director of
Labor Relations (or the General President, IUEC).
¶ 6. The parties shall mutually agree upon
the selection of an impartial arbitrator, if, within fifteen (15) days the parties
are unable to agree on the person to be selected as arbitrator, the parties
shall jointly request to submit the matter to arbitration conducted in
accordance with the Labor Arbitration Rules and Procedures of the American
Arbitration Association and by an arbitrator who is a member of the National
Academy of Arbitrators.
The
arbitrator shall render his decision immediately upon the close of the record
if the parties mutually agree otherwise the decision shall be rendered within
thirty (30) days of the close of the record or the receipt of the briefs if the
parties desire to file briefs. In an arbitration, either party may rely upon
Articles in the Agreement other than those set forth in the original grievance
form. The decision of the impartial arbitrator shall be final and binding on
all parties.
¶ 7. It is understood that the arbitrator
does not have the authority to add to, subtract from or modify in any way the
provisions of this Agreement.
BACKGROUND
Thyssen
Krupp, KONE, Schindler, Otis, Fujitec, Elevator Contractors of America,
Mitsubishi Elevator/Escalator Division, AMTECH Elevator Services, American
Elevator Co., Inc., and North American Elevator Services are large
multi-national elevator construction corporations. For many decades these employers
were parties to a series of multiemployer nationwide collective bargaining agreement,
the so-called "Standard Agreement", negotiated between National
Elevator Industry, Inc. ("NEII") and the International Union of
Elevator Constructors, ("IUEC" or "Union"). For the term July
9, 2002-July 8, 2007, however, each of these employers signed individual but
identical collective bargaining agreements, the so-called "Master
Agreement", negotiated by the IUEC for and on behalf of its affiliated
local unions, including Local 62 in Syracuse, New York. So far as the record
shows, the language in Article IV Work Jurisdiction 2(v) and Article
VIII-A Modernization Work of the 2002-2007 Master Agreement
("MA"), at issue in the present case, had been in the former NEII/IUEC
Standard Agreements since the 1990's and was carried forward without material
changes in the 2002-2007 MA.
Elevator
Technologies, LLC ("El-Tech" or "Company"), a smaller
employer engaged in the business of elevator construction, maintenance, modernization,
rehabilitation and renovation, is based in Syracuse, New York. El-Tech and the IUEC Local 62 are parties to a
so-called "Short Form Agreement" ("SFA"), dated June 2, 2000. That
SFA incorporates, by reference and attachment, the Thyssen Krupp Elevator/IUEC
version of the MA for the term July 9,
2002-July 8, 2007 but also contains SFA
Paragraph 11, supra. El-Tech is a Limited Liability Corporation, formed
in 1998 by its two principals and sole shareholders: James Cosbey (President
and 51% shareholder) and Christopher Duke (Vice-President and 49% shareholder).
Prior to starting El-Tech in 1996, Duke and Cosbey were for many years IUEC
Local 62 members working for Otis Elevator as elevator constructors, under the
terms of prevailing Standard Agreements. During that earlier period, Cosbey had
been the President of IUEC Local 62 for 6 years and also served as its Business
Manager from 1984 to 1987.
At
the time this dispute arose, El-Tech employed some thirteen (13) IUEC members
in the performance of elevator construction, modernization and service and
repair work, including elevator mechanics Thomas Grover and Patrick Rommevaux.
Service work usually is performed under service contracts with customers to
maintain and repair existing equipment, whereas elevator construction and/or modernization
work typical]y is performed on a one-time basis for a building owner, pursuant
to a performance contract. A modernization or rehabilitation contract usually
involves upgrading and updating operational and other major components of an
elevator, such as controllers, doors and door operators. Sometimes the
modernization work also includes upgrading the so-called "landing door entrance",
which consists of four structural components: one header, two jams and a sill
[witnesses also used the terms "door bucks" and "door
frame" to describe the entrance, and the term "transom" to refer
to the header].
Virtually
every elevator has a "landing door entrance" or portal surrounding
the entrance/egress opening on each floor which allows passenger entry to and
exit from the elevator. The record shows that for many years the great majority
of landing door entrance installation work has been performed by IUEC-represented
employees, notwithstanding a turn-of-the-century "Green Book" jurisdictional
decision by the American. Federation of Labor which assigned the work of
installing elevator landing door entrance framework in new construction to the Ironworker
craft. Former NEII Executive Director and chief negotiator testimony without
contradiction that the Parties added the words of ¶ 2 (v), "landing door entrances",
to Article IV Work Jurisdiction and Article IV-A Systems, Modular and Industrial Structures in the 1992-1997 Standard Agreement for the express
purpose of codifying that long-standing mutually recognized past practice. [The
record does not contain any such bargaining history evidence concerning the
genesis of MA Article VIII-A Modernization Work, nor was Mr. Walker
familiar with the provisions of the Short Form Agreement, specifically ¶ 11].
Following
the negotiation of Article IV ¶ 2(v) in the 1992-95 SA, NEII employers assigned
the work of installing landing door entrances solely to elevator constructors
covered by the IUEC Standard Agreement. The record shows that the transom, jams
and sill, which comprise a landing door entrances when bolted together and
installed by IUEC-represented mechanics, typically are fabricated off-site of
15 or 16 gauge pre-formed structural steel. In that connection, it is noted
that MA Article IV, ¶3(a)(9) provides: "Nothing contained in Article IV shall preclude the Company
from preassembling and prefabricating the following:... Landing door entrance
assemblies which will be limited to struts, sills, headers, frames and
associated hardware for installation purposes...". Whether
prefabricated at a shop or purpose-built at the site, the landing door entrance
framework, consisting of a transom on the top with two parallel side columns
('jams") used to support the transom and a sill at the bottom of the elevator
entrance, becomes a solid part of the elevator hoist way. The building walls,
which may be made of masonry, drywall or other materials, are then built in
around the entrance frame. At that point in the construction process, the
entrance frame becomes part of the building structure and in order to remove the
entrance frame, it would be necessary to demolish part of the building wall.
Landing
door frames typically come to the job site with a base paint already applied to
the structural steel. On older elevators, the landing door entrances, doors and
cab interiors frequently were simply painted following installation. On newer
installations and during modernization/rehabilitation upgrades, however,
elevator cabs, doors and entrances more often are "clad" with some
form of decorative/protective "skin" of sleet goods which coordinates
with or matches the doors; ranging from Formica laminates to specialty
materials like marble or laminated glass to the seemingly ubiquitous stainless
steel panels. Thus, elevator modernization/rehabilitation projects frequently
include updating the landing door entrance by "cladding" the existing
elevator door frame ("door bucks") i.e., applying a protective/decorative
covering to the header and jams with industrial strength adhesives.
It
is also noted that Mr. Walker testified about a negotiated resolution of a 1999
Article IV Work Jurisdiction dispute between the parties over the
practice of some NEII employers of subcontracting such "elevator cab
interior work" to non-IUEC Agreement cab installation companies under new
construction and modernization contracts. That dispute was settled when IUEC
agreed to order its affiliated locals to cease work stoppages in return for NEII's
issuance of the following October 15,
1999 letter (and attachment):
To-
All NEII Employers
Subject:
Elevator Cab Interiors
NEII
and the IUEC have agreed to resolve their differences regarding the practice of
some companies that subcontract cab interior work. The substance of the
resolution is contained in the attached document which I ask you to distribute
to those persons within your company that are responsible for the sale of your
new and modernized elevator products, as well as those who may have the
responsibility for vending or subcontracting some of the work which you accept
by contract.
Please
caution those who have such responsibilities that the IUEC will be diligent in
pursuit of the work which we have agreed to assign to their members. If the IUEC
believes that we are deliberately subverting the terms of the attached
resolution by inducing others to exclude cab interior work when it should be included
in the contract for elevator work, the IUEC will pursue every means available
to stop such activity.
In
exchange for our good faith agreement, the IUEC has pledged that they will not
encourage or induce any local union to engage in a work stoppage when elevator
cab interiors are not included in the contract for elevator work because the
owner or general contractor has excluded this work for appropriate reasons. The
IUEC has also agreed to withdraw its request for documents where elevator cab
work has been subcontracted in the past.
Sincerely,
S/E.
James Walker, Jr.
Executive
Director
Subject:
Installation of Elevator Cob Interiors
NEII
and the IUEC have been discussing the work of installing elevator cab interiors
for many months. Effective immediately, NEII will implement the following:
NEII
member companies will cease direct subcontracting of the work of installing elevator
cab interiors to non-IUEC cab installation companies when cab installation work
is included in a contract for new or modernized elevators.
When
the work of installing elevator cab interiors is to be subcontracted, NEII
employers will seek bids for work that is to be subcontracted from competent
contractors that are signatory to a contract with the IUEC.
If
the work of installing the cab interiors is not included in the contract for
elevator work, NEII members have no contractual obligation for the assignment
of this work.
In
those special situations where a NEII member believes that the installation of
cab interiors cannot be performed by available mechanics and helpers and no
competent subcontractor signatory to a contract with the IUEC submits an
acceptable bid for the work, a representative of the company will contact a
representative of the IUEC for a resolution. Where resolution cannot be
reached, the disputed work will continue without delay and the parties will
seek a binding resolution, including an appropriate remedy, by requesting
impartial arbitration pursuant to Article XV.
According
to mutually corroborating testimony from Mr. Walker and James Chapman, Jr., Assistant
to the IUEC General President, a direct consequence of the foregoing
Letter-Agreement was the addition of a training module titled "Elevator
Cab Modernization Refinishing and Floor Covering" to the National Elevator
Industry Educational Program ("NEIEP"), a jointly-administered
five-year apprenticeship program for Elevator Constructor Mechanics. The NEIEP
training materials and curriculum for IUEC elevator constructor apprentices
expressly includes tools and techniques for attaching or hanging various
protective/decorative coverings to the bare metal core of an elevator cab interior,
including wood panels, Formica laminates, metal panels, (specifically brass and
stainless steel), glass panels and marble panels, during elevator cab
modernization and refinishing jobs.
The
record clearly establishes that Elevator Constructors are composite mechanics,
with skill sets and apprenticeship training embracing the tools and techniques
for performing the "cladding" of bare or painted metal surfaces on
escalators, elevator doors, elevator cab interiors and elevator landing door frames
with laminates or metal panels using contact adhesives. Nor is there room for
doubt in the record that MA-covered, IUEC-represented Elevator Constructor
Mechanics of NEII elevator construction/modernization companies have routinely
performed such cladding work on doors and/or landing door entrances during
elevator rehabilitation/modernization projects since at least 1972; specifically
including the application of stainless steel panels to doors and landing door
entrances with various contact adhesives. Unrefuted testimony at the arbitration
hearing from a myriad of IUEC-represented elevator constructors, employed by various
IUEC Agreement signatory employers (including Otis, Schindler and El-Tech),
recounts in convincing detail their first-hand experience routinely performing
such stainless steel cladding work on elevator landing door frames during
rehabilitation or modernization projects for various employers throughout their
careers. In that connection, Elevator Constructor Mechanics Thomas Grover, Jr.
and Pat Rommevaux, Sr, testified that, until the instant grievance(s) arose,
they performed the work of cladding doors and door bucks with prefabricated
stainless steel panels by means of epoxy adhesives on various jobs on elevator
modernization jobs by El-Tech, including at the Bernardine Apartments and at SyracuseUniversity.
Before
Elevator Interiors, Inc. ("El-Interiors") was purchased by Messrs
Cosbey and Duke and re-incorporated, with themselves as sole shareholders,
El-Interiors had been a fabrication shop from which Otis Elevator, Schindler
Elevator, Thyssen Krupp and El-Tech all purchased specialty cab interiors and
other prefabricated elevator components (including stainless steel cladding for
landing door entrances), for installation by their IUEC-represented. employees.
[It is noted that El- Interiors, under its previous ownership, was the vendor
from which El-Tech purchased the prefabricated stainless steel panels which
El-Tech employee Rommevaux used to clad doors and landing door entrances on the
Bernardine Apartment rehabilitation project]. After purchasing Elevator
Interiors, Cosbey and Duke continued to operate that company primarily as a
shop for designing and fabricating elevator cab interiors and pre-formed
decorative/protective panels for cladding elevator cabs and entrance ways by
various elevator construction/modernization companies, including Otis and
El-Tech.
The
instant grievance(s) allege that El-Tech violated the rights of its
IUEC-represented employees under the SFA and the MA when it permitted or
assigned non-union employees of El-Interiors, a Corporation wholly-owned and
controlled by Messrs. Duke and Cosbey, to apply prefabricated 14-gauge stainless
steel panels, with industrial strength epoxy resin, to existing elevator
entrance door frames, i.e "skin the bucks", during an elevator
rehabilitation project involving five (5) Syracuse Housing Authority ("SHA")
facilities. It is not disputed that IUEC-represented employees of El-Tech were
used to perform the work of rehabilitating the operating components of the old
elevators at the Syracuse Housing Authority. Nor is it disputed that two (2)
non-Union employees of El-Interiors (one of whom is Cosbey 's son) were used to
perform the work of attaching pre-formed 14-gauge stainless steel panels, by
means of a proprietary spray-on contact adhesive, to the landing door entrance
frames on those same elevators.
The
record shows that El-Tech bid for and was awarded the contract for modernizing
and rehabilitating the SHA elevators using its IUEC-represented employees and El-Interiors
later separately bid and was awarded the contract for cladding the landing door
entrances (transoms and side-columns) with stainless steel, using two (2)
non-Union employees. Apparently, the refinishing of these landing door
entrances was not included in the scope of the elevator modernization work
which SHA initially contracted with El-Tech to perform. According to testimony
from Messrs. Duke and Cosbey, sometime after El-Tech employees were engaged in
the initially contracted elevator rehabilitation project, SHA changed its mind
about its original plans to simply repaint the existing entrance door landings
and sought bids for cladding the entrance ways with stainless steel. At that time,
as Elevator Interiors, Cosbey and Duke successfully bid and contracted with SHA
to perform that elevator entrance way cladding work.
At
or about the time this dispute arose, IUEC had been engaged in an unsuccessful
effort to have Cosbey and Duke voluntary recognize Local 62 as the exclusive
bargaining representative for the two (2) full time employees of Elevator
Interiors. On that basis, El-Tech maintains that the instant grievance(s) and a
concurrent audit of its accounts initiated by IUEC constitute retribution for
not acceding to the Union's request for bargaining rights at Elevator
Interiors. In any event, the instant grievance and several identical grievances
were timely filed and processed through the grievance machinery without
resolution until appeal to me for final and binding determination in arbitration
under Article XV of the MA.
POSITIONS OF THE
PARTIES
The Union
In the Union's view,
this is a straightforward case that can be resolved by application of specific,
written provisions of the parties' Agreement(s). The pending grievances
challenge the actions of James Cosbey and Chris Duke, the President and Vice
President, respectively, and the sole shareholders of Elevator Technologies (an
IUEC Agreement-signatory company) in assigning stainless steel
"cladding" work on elevator door entrances to non-union employees
employed by Elevator Interiors-- a non-union company owned and controlled by
Cosbey and Duke. By assigning the stainless steel cladding work available at the
various Syracuse Housing project work sites to employees of Elevator Interiors,
rather than Elevator Technologies, the principals of Elevator Technologies
violated the terms of the agreements they entered with the IUEC.
The Union argues
that the work is clearly covered by the jurisdictional clause of the Industry's
Master Agreement, to which Elevator Technologies is bound under the terms of
the particular "Short Form" Agreement signed with the Union by the Ccompany.
Moreover, under the express provision of Paragraph 11 in the Short Form
Agreement, the Union maintains that when such work is performed - whether
under the signatory Company's own name or under the name of the related company
- it is supposed to be performed by the terms and conditions of the Union's Agreement(s).
The evidence establishes that
the Union's position on this issue is not only correct, but also straightforward.
First, Article IV, Paragraph 2(v) specifically covers the installation of the
landing door entrances. That provision does not limit the work to brand new or
the original buck. It applies equally well to modernization jobs where the
original buck is reskinned. Thus, it is bargaining unit work by virtue of the
literal language of the agreement. Moreover, even with respect to replacement
skins, there is overwhelming evidence in the record that such work is regarded
and performed as bargaining unit work. Indeed, Elevator Technologies'
representatives conceded its IUEC employees did this exact same work until the
time it purchased Elevator Interiors. Several union members, including two
Elevator Technologies employees, testified they have done this same work for
other companies, as well as Elevator Technologies itself. Regardless of how the
work was put out for bid or the contracts awarded Elevator Technologies and its
principals have agreed by virtue of Paragraph 11 of the Short Form Agreement
that when this work is to be performed, it will be done under the terms of the
Master Agreement.
Accordingly, the IUEC urges
the arbitrator to find Cosbey and Duke's assignment of the field installation
of the stainless steel bucks to the landing door entrances at the five Syracuse
Housing elevator modernization projects to non-union employees violated the
Master Agreement's work jurisdictions terms set forth in Article IV and VIII
and the specific restrictions set forth in the Short Form Agreement which James
Cosbey executed on behalf of Elevator Technologies. Consequently, the affected
bargaining unit employees are entitled to compensation for the lost wages
associated with the failure to assign them the stainless steel cladding work at
the Syracuse Housing Projects, in accordance with the terms of that Agreement.
We ask the Arbitrator to retain jurisdiction in the event the parties are
unable themselves to determine the amount of any lost wages and benefits due.
The Employer
By the end of the hearing,
the Union had all but abandoned its argument that industry practice supported
its position, and instead pinned its hopes on Master Agreement Article IV, par.
2(v). However, plain contract language and undisputed evidence of bargaining
history establish that the words "landing door entrances" are too
slender a reed on which to rest the Union's claim to the work of applying architectural
finishes to existing entrances. Under the plain meaning of Master Agreement
Article IV, the work of applying architectural finishes to existing entrances -
regardless of the material used - is not awarded to the IUEC.
The Union failed to
carry its burden with respect to any clement of its claim. Applying architectural
finishes to existing elevator entrances has never been considered work "of
the type covered by" the parties' Agreement. Evidence from both parties
established that such work is usually performed by non-IUEC personnel even when
it is controlled by an IUEC signatory. Forced to concede that finishes as
varied as paint and marble have never been viewed as covered by the Agreement,
the Union was left to argue that stainless steel is somehow different under the Agreement.
The Union's numerous attempts to characterize the application of stainless
steel finishes to existing entrance frames as somehow affecting the operation
of the elevator failed when witnesses familiar with Elevator Interiors' product
established that it is applied without requiring any access to the elevator hoistway
or manipulation of elevator components. There is no principled interpretation
of the Agreement or Master Agreement under which the work of applying stainless
steel to existing entrances is "of the type covered by the
Agreement," but applying any other type of finish to the same entrances is
not.
Since the disputed work was
not "of the type covered by the Agreement," as required by
"Short Form Agreement" Paragraph 11, the grievance can and should be
denied without going any further. Even if that fatal flaw in the Union's case
could be set to one side, the Union failed to establish other elements of Agreement
Paragraph 11. Specifically, neither of the purposes cited in Paragraph 11,
i.e., to "protect and preserve for the employees covered by this
Agreement, all work heretofore performed by them" and "to prevent any
device or subterfuge. . .", were established by the Union.
The Union also
failed with respect to other elements of its claim. The evidence established
that E-Tech did not "have control to bid" the work of installing
architectural finishes to entrances at 338
Gifford Street or elsewhere. To the
contrary, Syracuse Housing Authority only invited E-Tech to bid on the work of
modernizing elevator components and specifically directed it not to bid on any
work on entrances. The union produced no evidence of any "device or
subterfuge" by E-Tech or any associated party. Finally, the Union produced
no evidence supporting its grievance claim for "lost wages & benefits."
The grievance should be denied.
Finally, in addition to the Union's failure
to establish any breach of any contract violation, there is no basis to award
the Union a remedy. Indeed, the Union did not even attempt to introduce evidence supporting
the grievance's claim that E-Tech should "[p]ay lost [sic] of wages & benefits
for a local 62 mechanic and apprentice for five 8 hr. days." The Union failed to
carry its burden with respect to any remedy. Even if the Union
established all other elements of its claim (which it did not), the Arbitrator
should deny the grievance's requested remedy.
OPINION OF THE
IMPARTIAL ARBITRATOR
In
jurisdiction of work arbitration it is critically important that the Arbitrator
define with as much precision as possible the work in dispute and avoid
arbitral overreaching or dicta which could raise more disputes than it
resolves. In that regard, it is necessary at the outset to clear the record of
some red herrings raised by artful advocacy and reaffirm the very narrow scope
of the work jurisdiction claim raised by the grievances in this case. Because
testimony and argumentation at the arbitration hearing sometimes drifted into
several immaterial topics and areas, it is important initially to state that
the grievance does not raise and the decision in this case is not intended to
address any of the following matters: work assigned by building owners to
non-signatory employers; work Elevator Interiors performs in its fabricating
shop; work that may be assigned at a job site by other employers to carpenters,
electricians, masons or ironworkers. It is also outside the reach of this
grievance and Award whether the IUEC wants Elevator Interiors, the non-Union
company, to recognize IUEC as the representative of its shop employees; whether
it is cheaper for a signatory employer to use less expensive hourly workers to perform
the labor required under its elevator modernization contracts and whether the
IUEC or the National Elevator Industry Benefit Plans seek to audit Elevator
Technologies.
Finally,
contrary to the Employer's primary argument, I conclude that this case is not
about "applying architectural finishes-- regardless of the material, tools
or techniques used" to landing door entrances. In the final analysis, it
is immaterial whether there might arguably be exotic marble finishes, unique
historical bronze finishes, elaborate wood cabinetry or electrostatic painted
finishes for elevators and elevator landing entrances which require unique
tools, equipment, training and skills possessed by other trades, because this
particular case is not about such matters. Rather, from start to finish, this
case is only about the application of generic stainless steel cladding to
existing elevator landing entrances during an elevator modernization project.
The record establishes that such stainless steel cladding is as ubiquitous in
landing door entrance modernization as stainless steel doors are for modern
elevators and further that most Elevator Constructor Mechanics possess the
skills and experience needed to apply such surfaces.
Review
of on-property grievance handling documents as well as pre-arbitration
correspondence from El-Tech Counsel to IUEC Counsel reinforces my conclusion
that a very narrow scope of work jurisdiction claim is presented for
determination in this case. After the Union protested the assignment to El-Interior employees of
the stainless steel cladding work on the SHA rehabilitation projects, El-Tech Vice
President Duke notified Local 62 Business Manager Robert Kimmerle, by letter
dated January 2003, as follows (emphasis added):
RE: Applying
Architectural Finishes to Exterior Entrances
Recently
a project was awarded Elevator Interiors Inc., Syracuse, New York to
provide a new finish to existing hoistway entrances. The scope of work is limited to adhering
14-gauge stainless steel cladding to the columns and transom. The present
determination by the IUEC is that this work is included in the contract
agreement.
Past
work experiences throughout Central New
York over the last 20-years would
indicate otherwise. Architectural finishes such as painting/stripping, applying
of marble, applying of tile, applying of wood or Veneer, have all occurred
without issues. In fact on several new installations within Syracuse, New York this work
has been performed by outside contractors while the elevator constructor was on
site. The applying of stainless steel cladding with an epoxy is an
architectural finish, which does not require any access to the hoistway or top
of elevator. The stainless steel finish does not add to the structural integrity
or change any operating safety standards.
I am
requesting documentation of contract references and past grievances for the
architectural finish work described above. If Elevator Technologies can be
provided reasonable documentation prior to this work being performed, the
installation by others will be reconsidered. This work is being delayed until February 1,2003 to
provide a reasonable time for response. I believe the best interest of both the
IUEC and Elevator Technologies can be satisfied with this information.
In
May 2003, after the initial grievance was filed, Mr. Duke issued a formal
response which read as follows:
RE:
Grievance Response
IUEC
Grievance #2002/62-4 has been issued to Elevator Technologies for work
performed by Elevator Interiors Incorporated. The work in question was cladding hoistway entrances
which had been installed 30 years prior.
Elevator
Interiors Inc. is not owned by Elevator Technologies. Elevator Interiors is a
Delaware Corporation established in 2003. Owners, Chris Duke and James Cosbey
purchased the assets of a non-union cab manufacturing and installation company,
operating in Central New York. Elevator interiors, Inc. currently manufactures
material for all local elevator contractors, however does not install cab
interior finishes. (hoistway entrance exterior finishes excluded).
Upon
notification hoistway entrance cladding was IUEC Contract work, by the local union
representative, the project was voluntarily delayed requesting additional
information. The information provided by the IUEC as clarification referenced
the work practices of a signatory cab company only. No information regarding
the exterior finishes of hoistway entrance was provided. The IUEC informed
Elevator Technologies additional information was not available.
1. Elevator Technologies does not have
corporate ownership of Elevator Interiors Inc. such as to constitute Double
Breasting.
2. Elevator Technologies has not been
provided supporting information describing hoistway entrance cladding;
veneered, and painted architectural finishes as work specified in the contract agreement.
Past work practices have allowed outside contractors to perform finish work.
Elevator
Technologies continues to request documentation as to verify architectural
finishes as Elevator Constructors Work. The double breasting grievance should
not be in question prior to work determination.
In
the final analysis, this case involves nothing more and nothing less than a
dispute about whether Elevator Technologies LLC, an IUEC-Agreement signatory
company, by the actions of its sole shareholders and chief officer/managers
James Cosbey and Christopher Duke, violated ¶¶ 1 and 11 of the Elevator
Technologies/IUEC Short Form Agreement [which incorporates the Thyssen Krupp
version of the 2002-2007 Master Agreement, including MA Articles IV, IV(A) and
VIII(A)] by assigning the work of "cladding" existing elevator door
entrances with preformed stainless steel panels to employees of Elevator
Interiors, Inc., a non-Union corporation wholly-owned, controlled and managed
by the same James Cosbey and Christopher Duke.
Since
the merits issue presented for determination is one of contract interpretation,
the Union has the overall burden of proving, by a preponderance of record evidence,
that the cited Agreement clauses were violated in the facts and circumstances
presented on this record. See Certainteed Corp., 88 L.A. 995, 998
(Nicholas, 1987); Entex, Inc., 73 L.A. 330, 333 (Fox, 1979); Porter,
Inc., 73 L.A. 56, 58 (Jason,
1979); City of Cincinnati, 69 L.A. 682, 685
(Bell,
1977).
The
mutual intent of contracting parties is the Alpha and the Omega for the
arbitrator of disputes over the interpretation and application of their
contract language. Reasoning that understandable contract language means what
it says, labor-management arbitrators and courts alike start with the premise
that such intent can best be ascertained from the plain words used in the
Collective Bargaining Agreement, despite the contentions of one of the parties
that something other than the apparent meaning was intended. SeeIndependentSchool Dist. No.
47, 86 LA 97,103 (Gallagher, 1985). As the Arbitrator appointed by the Parties
to serve primarily as their "contract reader", it is axiomatic that I
can neither ignore clear-cut contractual language nor legislate new language;
since to do so would usurp the role of the labor organization and employer. Clean Coverall Supply
Company, 47 LA 272, 277 (Fred Whitney, 1966). See also, Continental Oil
Company, 69 LA 399, 404 (Wann, 1977) and Andrew Williams Meat Company, 8 LA 518, 524 (Chaney, 1947).
Even
when the parties to an agreement disagree on what their contract language
means, an arbitrator who finds the language to be unambiguous will enforce its
plain meaning. Safeway Stores, 85 LA 472,476(1985) (Thorp); Metropolitan Warehouse, 76 LA 14,17-18(1981) (Darrow). The following decisions, Ohio
Chemical & Surgical Equipment Co., 49 LA 377, 380-391, (Solomon, 1967)
and Heela Mining Co., 81 LA 193,194(LaCugna, 1983), are just two
examples of thousands of reported arbitral determinations which follow these
principles:
It
is a basic and fundamental concept in the arbitration process that an
Arbitrator's function in interpreting and applying contract language is to
first ascertain and then enforce the intention of the parties as reflected by
the language of the pertinent provisions involved. As a necessary and essential
corollary, if the language being construed is clear and unambiguous, such
language is in itself the best evidence of the intention of the parties.... An
arbitrator may not and should not thereafter resort to the application of "equitable"
principles to be cloud the other wise clear intentions reflected by the
meaningful language adopted. He has no choice but to apply and enforce the
provision as written.
It
is axiomatic in labor arbitration that clear and unambiguous language,
decidedly superior to bargaining history, to past practice, to probable intent,
and to putative intent, always governs. Clear language is the arbitrator's
lodestar, his guiding light. He can neither ignore it, nor modify it; on the
contrary, he must give it its full force and effect.
See also Weil-McClain,
86 LA 784, 786 (Cox, 1986); Houston Publishers Ass'n. 83 LA 767, 776 (Milentz, 1984) and other cases at EIkouri & How Arbitration Works, 4th ed., p. 348-349 (1985).
Where
each of the Parties to a collective bargaining agreement has a different
understanding of what was intended by certain language, it is generally
recognized that the Party whose understanding is in accord with the ordinary
meaning of that language should prevail in the absence of misrepresentation, fraud
or mistake. See Hanon & Wilson Company, (S. Katz 1967), 67-2 Arb ¶
8583. Accord, Stewart Hall Company, 86 LA 370, 372 (Madden, 1985). Under
the strict technical application of the so-called plain meaning rule, words
must be given their ordinary everyday meaning, without resort to extrinsic evidence.
See Mohawk Rubber Company, 83 LA 814, 816 (Flannagan, 1984). A less
controversial corollary is the principle that words used by the Parties should
be given their ordinary and popular meaning in the absence of an indication
that they were intended mutually to convey some special meaning. See D. Nolan, Arbitration Law and
Practice (1979), N.8 at 168; Walter Jaeger, Williston on Contracts,
Section 618 at 705 (4th Ed. 1961). The Restatement (Second) of Contracts
is also in accord: "In the absence of some contrary indication, therefore,
English words are read as having the meaning given them by general usage, if
there is one. This rule is a rule of interpretation in the absence of contrary
evidence, not a rule excluding contrary evidence." (Restatement, N.
13 at Section 202, comment e.) A whole host of reported arbitration decisions
turn on these fundamental principles. See Parker While Metal Company, 86
LA 512, 516 (Ipavec, 1985); Anaheim
Union School District,84LA 101, 104
(Chance, 1984); Arco Pipe Line Company, 84 LA 907, 901 (Nicholas, 1985)
and Tri-County Metropolitan Transportation District, 68 LA 1369, 1370 (Tilbury,
1977).
In
the first sentence of MA Article VIII(A), supra, "modernization
work" is expressly defined as "any and all work performed on
apparatus enumerated in Article IV and Article IV(A) in any existing or occupied
building, to bring equipment up to date, including general repairs which are a
part of a modernization job". In the second sentence of Article VIII(A)
such "modernization work" is expressly reserved for performance by
Elevator Constructor Mechanics, Elevator Constructor Helpers and Elevator Constructor
Apprentices. The noun "apparatus"(plural "apparatuses") is
defined by the Oxford University Dictionary as "the equipment needed for a
particular activity or purpose". Tinder the Plain Meaning Rule of contract
construction, supra, landing door entrances are apparatuses specifically
enumerated in MA Articles IV ¶ 2(v) and IV(A) ¶2(o).
Application
of the fundamental principles of contract construction enumerated, supra,
to the undisputed facts of record leads to a conclusion that rehabilitation or
upgrading of existing elevator landing door entrances, by contact adhesive
application of stainless steel protective/decorative cladding, is
"modernization work" covered by the first sentence of Article VIII(A)
and thereby subject to the requirements of the second sentence of Article
VIII(A). It necessarily follows that rehabilitation or upgrading of existing
elevator landing door entrances, by contact adhesive application of stainless
steel protective/decorative cladding, is "on-site work of the type covered
by this Agreement", within the meaning of that quoted term in the second
sentence of the Paragraph 11 of the SFA. Moreover, the record in this case
persuasively establishes that such stainless steel cladding of landing door
entrances is "work heretofore performed" by Agreement-covered
employees, within the meaning of that quoted term in the first second sentence
of Paragraph 11 of the SFA.
In
Paragraph 11 of the SFA, El-Tech (the Employer) and IUEC farther expressed
their mutual intent to "protect and preserve" such work for the
employees covered by the Agreement and to "prevent any device or
subterfuge to avoid the protection and preservation of such work", by the
following:
If
and when the Employer shall perform any on-site work of the type covered by
this Agreement, under its own name or under the name of another; as a
Corporation, Company Partnership, or any other business entity, including a
joint venture, wherein the Employer, through its officers, directors, partners,
or stockholders, exercises either directly or indirectly, management control,
or majority ownership, the terms and conditions of this Agreement shall be
applicable to all such work.
Under the plain words of that
quoted provision, Elevator Interiors is "a Corporation, ... wherein
Elevator Technologies, through its officers, directors, partners, or
stockholders, exercises either directly or indirectly, management control, or
majority ownership".
In
all of the facts and circumstances of the record in this case, I am compelled
to conclude that Elevator Technologies violated the violated the contract
rights of its IUEC-represented employees under SFA ¶1 (including MA Articles VIII-A)
and SFA ¶11, when it permitted or assigned two (2) non-Union employees of a
Elevator Interiors to apply prefabricated 14-gauge stainless steel panels, with
industrial strength epoxy resin, to existing elevator entrance door frames, i.e "skin the bucks", during an elevator rehabilitation project at
Syracuse Housing Authority ("SHA") facilities. The remedy for that
proven violation of the Agreement is set forth expressly in the second and
third sentences of SFA ¶ 11(a), as follows:
Remedies
for violations of this Section shall include requiring an employer to (1) pay
to affected employees covered by this Agreement, including registered
applicants for employment, the equivalent of wages lost by such employees as a
result of the violations, and (2) pay into the joint trust funds specified in
this Agreement any delinquent contributions to such funds including interest
and liquidated damages which have resulted from the violations.
AWARD OF THE IMPARTIAL
ARBITRATOR
1) The Company did violate the Collective
Bargaining Agreement, as claimed in Grievance Number 002/62-4.
2) As remedy for the proven violation; the
Company is directed to: (1) pay to affected employees covered by the Agreement,
including registered applicants for employment, the equivalent of wages lost by
such employees as a result of the violations, and (2) pay into the joint trust
funds specified in the Agreement any delinquent contributions to such funds including
interest and liquidated damages which have resulted from the violations.
3) Jurisdiction is retained for the sole
purpose of resolving any disputes which may arise between the Panics regarding
the meaning, application or implementation of this Award
_______________________________________________
Dana Edward Eischen
Signed at Spencer, New York on March 25,
2005
STATE OF NEW YORK
}
SS:
COUNTY OF TOMPKINS
On this, the 25th day of March,
2005, I, DANA EDWARD EISCHEN, upon my oath as Arbitrator, do hereby affirm and
certify, pursuant to Section 7507 of the Civil Practice Law and Rules of the
State of New York, that I have executed and issued the foregoing instrument and
I acknowledge that it is my Opinion and Award in the above matter.
