Otis Quality Supervisor

A MATTER IN ARBITRATION

In a Matter Between:	) Grievance:	OQS Position

INTERNATIONAL UNION OF	)
ELEVATOR CONSTRUCTORS,	) AAA No.	74 30000382 04 LYMC
(Union)	) Hearing:	September 28, 2005
and	) Award:	January 23, 2006
OTIS ELEVATOR COMPANY,	) McKay Case	No. 05-017
(Employer)	)

DECISION AND AWARD

GERALD R. McKAY, ARBITRATOR

Appearances By:

Union: Robert Matisoff, Esq. O'Donoghue & O'Donoghue 4748 Wisconsin Avenue, N.W. Washington, D.C. 20016

Lynn Rossman Faris, Esq. Leonard Carder, LLP

1330 Broadway, Suite 1450 Oakland, CA 94612

Employer: Peter B. Robb, Esq.

Pamela J. Coyne, Esq.

Downs Rachlin Martin, LLP P. 0. Box 9

Brattleboro, VT 05302-0009

A MATTER IN ARBITRATION

In a Matter Between: )

) Grievance: OQS Position

INTERNATIONAL UNION OF )

ELEVATOR CONSTRUCTORS, ) AAA No. 74 30000382 04 LYMC

(Union) ) Hearing: September 28, 2005

and ) Award: January 23, 2006

OTIS ELEVATOR COMPANY, ) McKay Case No. 05-017

(Employer) )

STATEMENT OF PROCEDURE

This matter arises out of the application and interpretation of a Collective Bargaining Agreement, which exists between the above-identified Union and Employer.¹ Unable to resolve the dispute between themselves, the parties selected this Arbitrator in accordance with the terms of the contract to hear and resolve the matter. A hearing was held in Burlingame, California on September 28, 2005. During the course of the proceedings, the parties had an opportunity to present evidence and to cross-examine the witnesses. In addition, the parties also had an opportunity to submit written affidavits from individuals. At the conclusion of the hearing, the parties agreed to submit written briefs in argument of their respective positions. The Arbitrator received copies of those briefs from the parties on or about December 30, 2005. Having had an opportunity to review the record, the Arbitrator is prepared to issue his decision.

Joint Exhibit 1

ISSUE

Whether the Employer's use of the Otis Quality Supervisors is a violation of the Collective Bargaining Agreement because it assigns bargaining unit work to non-bargaining union personnel. If so, what is the appropriate remedy?2

RELEVANT CONTRACT LANGUAGE
ARTICLE II
Recognition Clause

The Employer recognizes the Union as the exclusive Section 9(a) bargaining representative for all Elevator Constructor Mechanics, Elevator Constructor Helpers and Elevator Constructor Apprentices (hereinafter referred to sometimes as "Mechanics, Helpers and Apprentices") in the employ of the Company engaged in the installation, repair, modernization, maintenance and servicing of all equipment referred to in Article IV, Par. 2 and Article IV(A).

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.

²Transcript page 16

ARTICLE XI
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. Contract Service Work shall be exclusively performed by Constructor Mechanics, Elevator Constructor Helpers and Elevator Constructor Apprentices.

BACKGROUND

The Employer is in the business of constructing, installing, and repairing various forms of elevator and moving walkway equipment in the United States and around the world. The-Union represents employees hired by the Employer for the purpose of inspecting and maintaining the elevator equipment installed by the Employer. In 2002, the Employer created a position it refers to as Otis Quality Supervisors (OQS) who the Union contends engage in an inspection process of the elevator equipment, which is work that should properly be assigned to members of the bargaining unit. According to the Union, the OQS individuals do not supervise, but simply inspect the elevator equipment reducing the amount of work available for bargaining unit members. It is the position of the Employer that the OQS employees are supervisors who are hired to assist the area supervisors engaged in equipment inspection, which is part of the normal and usual work of the regular area supervisors. Because of the workload that these supervisors have, they have not been able to fulfill their obligation to inspect equipment as the Employer expects and, therefore the OQS position was created to provide this assistance so the inspections may be completed. The OQS personnel, according to the Employer, do not engage in any bargaining unit work at all, and do not violate any provision of the Collective Bargaining Agreement.

The Employer developed the OQS program in 2002. In a PowerPoint presentation prepared by Otis for its managers, the Employer explained the purpose for the OQS program. On the slide titled, "Why Introduce the OQS,"³ the author of the PowerPoint stated in a bullet point "More Efficient Use of Valuable Resources is Required . . . Customers are Demanding Lower Prices . . . Costs are Rising . . . Wages . . . Materials . . . Mechanics must Service More and More Units." In the slide titled, "Why Introduce the OQS," the author stated, "OQS will Allow our Service Personnel to Focus on the Tasks that Customers Value . . Safety .. . Preventative Maintenance . . . Callback Reduction." The next slide which is titled, "What will the OQS be Doing?" the author sets forth a number of activities, which it identifies as procedure 8910. These activities include, (1) visit customer; (2) ride elevator (looking for performance issues, noises, squeaks); (3) survey the button operation; (4) survey and tests the operation of the ADA phone; (5) survey the door operation and reversal device; (6) survey the carhop for cleanliness and any visual problems; (7) survey the pit for cleanliness, oil leakage and obvious problems (loose ropes, comp or governor sheave bottomed); (8) survey the machine room for cleanliness and check the unit record log (is it up to date?); (9) survey the REM installation and operation, recommend if not installed; (10) looks for open order opportunities working with the RSA; and (11) leave the customer a courtesy survey report.

The Employer has another slide titled, "What the OQS Mission is and is Not!" The OQS mission is, according to the Employer's PowerPoint slide, "Identify open order sales; locate safety related issues; complete maintenance surveys; update EIM databases; identify exceptional

jobs for recognition; assist supervisor in identifying future procedures." An OQS is not, according to the Employer, "Mechanic; Salesperson; Maintenance Supervisor."

The PowerPoint presentation goes on to present a number of questions regarding the position. There is a slide titled, "Who knows what an OQS is and what he/she does?" The subsequent slide titled, "Purpose" states, "Entry-level, developmental position to sales/supervision; assist sales staff and supervisors; provide more frequent customer interface; no IUEC work." The subsequent slide says, "Roles & Responsibilities." It notes in its bullet points, "Liaison between Otis/Customer; Assist Super in day to day activities - observing, reporting, and auditing -- supervisor surveys -- material ordering; Maintenance management - 8910 e*Service input; Provide open order leads to sales staff D:\My Documents\Maintenance\OQS-Sales Maintenance Opportuniteis.xls; Identify maintenance and repair issues." On the next slide, it is titled, "Do's and Don't's" and states that "OQS does NOT perform IUEC Work - Do not maintain equipment - Do not service equipment - Do not clean equipment - Not a replacement for a Mechanic ... OQS does perform - Managerial, supervisory and sales-related tasks that were not being performed with the desired frequency." On a slide titled, "What the OQS is Not," it states, "A replacement for I.U.E.C. labor - the OQS will perform no Article 4 work - We are not performing work claimed by the IUEC; A replacement for maintenance supervisors; An account representative."

In the reporting structure of the Employer's operation, the OQS appears to report to the maintenance supervisor. In an Otis publication distributed throughout the company, the Employer explained the nature of the OQS position. In part, the article notes, "The OQS is doing what maintenance supervisors have been doing for years, but they are doing it more regularly

now," said Mike Mutal, Western Regional Field. Operations Manager. He and Regional General Manager, Robert K. Williams, explained that the OQS observes the equipment and completes a checklist on a Palm Pilot. The data goes to the customer and the maintenance supervisor. An OQ S' responsibility is to meet customs regularly, observe equipment for safety, quality of ride, performance, and potential upgrades." As a result, an OQS may find that a mechanic must be dispatched earlier than originally scheduled to deal with a problem. "The OQS can help mechanics do their jobs better by alerting them to what they will find at a particular building and what supplies they will need to bring," said George Hertensteiner, Southern Region Sales Manager. "The OQS does not perform any mechanical functions or procedures, not even changing a light bulb. Rather the job entails relaying relevant information to the right people, for example, if a customer has a door opening system that could benefit from an upgrade, the OQS notifies a sales associate."4

Mr. Mike Mutal, who has worked for the Employer for 38 years coming up the ranks from the entry level position of Helper and who is presently the Field Operations Manager for Service for the Employer's Western Region, which covers most of the western half of the United States, testified that he was instrumental in beginning the OQS program for the Employer in 2002.⁵ In the western region, according to Mr. Mutal, there are approximately 22 supervisors, 20 superintendents who are responsible for construction, and around 225 route mechanics. He estimated that there were around 40 apprentices. In the western region, there are approximately 26,000 unit that these Mechanics are required to provide service for.° A unit is an individual

⁴Union Exhibit 10

⁵Transcript page 120

⁶Transcript page 123

elevator or escalator at any particular location. The Employer has various kinds of service contracts that it extends to its customers at the locations where units are located. He described one as a full service maintenance agreement and another as a light service contract. There are also a variety of subcontracts. According to Mr. Mutal, a member of the public may go to Otis.com and review the type of contracts that are available for the maintenance of elevators. Mr. Mutal described in some detail the types of work that would be covered by a service contract, including the testing of equipment. All of the work he described, according to Mr. Mutal, is performed by the Mechanics and/or apprentices. One of the provisions in the service agreements is one referred to as a callback, which means that the service Mechanic is available 24 hours a day, 7 days a week to take care of any problem the customer may have with their particular unit.^? All of the Mechanics maintain a Nextel phone, which the Employer uses to contact them with information regarding work that needs to be performed.

In addition to Mechanics inspecting the units at customer locations for various problems, the supervisors of those Mechanics are also required to conduct surveys of those units on an annual basis, according to Mr. Mutal. He stated, however:

"But unfortunately, you know, the supervisors today are very busy, with the amount of work that they have, the workload that they have.

So even though they're responsible for surveys, as was pointed out earlier today, they haven't been getting to the surveys like -- like they should. And we recognize that this is an issue.

And what we're trying to do is supplement the supervisors with having OQS's out doing surveys."8

7 Transcript page 126

⁸Transcript page 145 and 146

Mr. Mutal estimated that based on his experience with the Company, supervisors have been doing surveys since the 1950's. According to Mr. Mutal, in the last 10 years, the number of units assigned to supervisors has grown extensively. Ten years ago, a supervisor might have had 400 to 700 units. Now some supervisors are responsible for as many as 1,700 unit. The increase in the number of units assigned to supervisors makes it very difficult for them to see the units and the customers, who own those units, on a regular or annual basis, Mr. Mutal testified. Some customers would never see a supervisor because of the amount of work the supervisor was

required to perform.

It was, in part, because of the amount of work assigned to supervisors that the position of

OQS was developed. Mr. Mutal testified:

"It came about because we needed to -- we were getting customer issues, where we wanted to address, you know, the customer issues. And we felt that -- and our supervisors weren't getting out to see the jobs.

There was open -- there's opportunities to additional sales.

And the idea of putting the things together, what the supervisor used to do, to create a position of a quality supervisor going out there, is -- is what we -- is -was how the concept started.

And we picked the first OQS, who was in San Jose, Abel Sanchez, who'd already been working for Otis. And -- and he's -- he worked closely with the service department.

And we put him out there, actually, under -- training with a senior sales manager, doing what the sales department has done for years and what the supervisors have done, go out and visiting the customers, you know, checking the overall operations of the units, and selling an open order."9

Mr. Mutal testified that he has been communicating with the Union about the OQS position since

at least September of 2002.10

9 Transcript page 151

10 Transcript page 152

Mr. Mark MacLeod, in a Declaration, testified that he is Senior Regional Field Operations Manager for Otis Eastern Region." He has been employed by the Company for 34 years. He reports directly to the Regional Vice President, supervises four Regional General Managers, and supervises four Regional Operation Managers. He described the increase in the number of units assigned to supervisors, pointing out that it had been at one time between 315 and 400 units, and has grown to 1,800 units. This he attributes to the rapid growth in the industry and the increasing number of units serviced by the Employer. He noted that it has become difficult for the Employer to hire new supervisors for a number of reasons. In the past, supervisors would come from the ranks of Mechanics who rose up in the industry from the positions of Helper. But because of various Union benefits, it is hard to attract those individuals to work as supervisors. To help increase the number of supervisors, according to Mr. MacLeod, the Employer adopted a number of programs; one which he called the Field Management Development Program to train individuals with leadership experience from other industries to become supervisors for Otis. In addition to these individuals, the Employer also created the OQS Program in 2002 to assist supervisors who have a load that is considered to be heavy. The Employer also hopes that the OQS Program will provide additional candidates for other management positions.

Mr. MacLeod testified that he was the Chair of a Rapid Acceleration of Process Improvements and Decisions meeting, which was in part responsible for implementing the OQS program. The decision whether to hire a specific OQS for a particular branch is determined by a group of four to five people consisting of a combination of Regional Vice President, Regional

Employer Exhibit 1

Human Resources Manager, Regional Field Operations Manager, Regional General Manager, Branch Manager and/or Supervisor. Once it is determined that an OQS is needed, the Branch Manager is responsible for the final hiring decisions. The OQS reports to the ,Maintenance Supervisor. The OQS position does not require prior elevator experience because the Employer provides the training and orientation. Supervisors are responsible for field training, which generally lasts four to six weeks. During their training, OQS candidates are informed that the Mechanics, Helpers, and Apprentices are represented by the Union and the duties of the OQS are distinguished from the duties of Mechanics, Helpers, and Apprentices. OQS personnel, according to Mr. MacLeod, do not carry tools other than a pressure gauge and a stopwatch. According to Mr. MacLeod, OQS personnel do not perform "examination" or "simple examination" as that term is used in the Collective Bargaining Agreement.

The OQS survey, according to Mr. MacLeod, is the same as the historical "Supervisor Survey," which includes a door performance test, which requires a stopwatch and a pressure gauge. This test is conducted by sticking a foot between the elevator doors as they are closing, inserting the pressure gauge, and removing the foot. This test takes approximately five to ten second and measures the door closing speed and torque. The OQS will not perform the Otis Maintenance Management Systems (OMMS) test because the test protocol requires the tester to also make repairs. Each machine room, according to Mr. MacLeod, has a unit record log, which is to be regularly maintained and checked monthly. Unless the State law requires only licensed personnel to make entries, Mr. MacLeod stated, anyone, including supervisors, managers, or OQS's can make entries of their observations.

Mr. Robert McNeill testified that he is the General Manager of the San Francisco branch office and has worked for the Employer for 27 years. The elevator service and maintenance business is a large segment of the Employer's overall business, Mr. McNeil] testified.12 According to Mr. McNeill, under Article IX of the Otis Agreement with the Union, contract service work is performed by the IUEC represented Mechanics, Helpers and. Apprentices. Supervisors do not perform that work. He described the duties of supervisors in the following manner:

"In addition to supervising the mechanics, the maintenance supervisors have several responsibilities, including but not limited to: (a) directing examiners and repair teams: (b) responding to emergencies; (c) researching and ordering parts; (d) budgeting labor hours and material dollars; (e) participating in, and generating, sales leads, including estimates for sales; (f) safety training; (g) the payroll process; (h) final billing for non-contractual work; (i) setting up and scheduling work assignments; (j) insuring code-required inspections and tests are done on time; and (k) evaluating employee performance, including jobsite surveys."

He went on to state that the most important duty of the supervisor "is going to customers' buildings to see what is actually happening at the site and interface with the customers." He stated:

"The Maintenance Supervisor is responsible for the service and maintenance of all units currently being serviced by the San Francisco office. Supervisors are supposed to visit each customer at least annually to do surveys of quality work and condition of each unit. The Supervisor survey consists of five functions: (a) safety; (b) quality; (c) leadership; (d) cost control; and (e) sales opportunities. The primary purpose of the survey is to monitor the Mechanics' work and to assure customers that the Mechanics are supervised. Supervisors have always performed this function."' 3

12 Employer Exhibit 4

13 Employer Exhibit 4, page 3

According to Mr. McNeill, the OQS role is to observe and report, essentially to conduct the survey for the supervisor exactly as it has always been done. When the OQS performs the survey, Mr. McNeill stated, the Mechanic responsible for that unit may or may not be on site. An OQS can make a report to the supervisor suggesting that the Mechanic's work is superior and warrants commendation.

Mr. Phil Harward testified that he is the Maintenance Supervisor in the Employer's Raleigh, North. Carolina field office. He described the Supervisor Survey in the same mannerthat Mr McNeill described it. He stated, as Mr. McNeill did, "The primary purpose of the survey is to monitor the Mechanics' work and to assure customers that the Mechapics are supervised."14

Mr. Kelly Houlihan testified that he is at the present time a Construction Superintendent in the Seattle office, but was the Service Manager in the Seattle office from July 1, 2003 until July 15, 2005. He described the Supervisor Survey in various similar terms to Mr. Harward. He stated, "The primary purpose of the survey is to monitor the Mechanics and to assure customers that the Mechanics are supervised."I5

Mr. Jay Barber, the General Manager of the Portland, Oregon branch, testified that the primary purpose of the supervisory survey "is to monitor Mechanics' work and to assure customers that the Mechanics are supervised."¹⁶ The OQS Program, from Mr. Barber's perspective, is to relieve supervisors who have heavy loads of some of the responsibilities, such

Employer Exhibit 6, page 2

¹⁵Employer Exhibit 7, page 2

Employer Exhibit 5, page 3

as conducting the supervisory survey. He stated, "The OQS' role is to observe and report, essentially to conduct the survey for the Supervisor exactly as it has always been done."17

The Union witnesses, whose declarations appear in the record, claimed that the Employer's assertion that OQS personnel were to conduct supervisory surveys as the supervisors had conducted them in the past is not correct. A number of the declarants asserted that in the past when a supervisor conducted the supervisory survey, the Mechanic responsible for that particular unit was present for the survey. Mr. Roy Francesconi, Jr. stated in his declaration that he has been a Mechanic since 1976. During his years as a Service Mechanic for Otis, his supervisor would do an annual survey of his units with him present. Mr. Francesconi. testified:

"He would do an overall evaluation of the condition of the equipment, observe as

I performed a door test and check the door speed, look at the pit in the machine room and he would give me an evaluation and note any deficiencies that needed to be corrected. He would also note any repairs that were needed on that equipment. To my knowledge, such annual evaluations were performed in the presence of the service mechanic as a standard practice at Otis."18

He went on to state that when he was a supervisor, he always did his surveys with the Mechanic presence. Mr. Patrick McGarvey stated in his declaration:

"In my career as a service mechanic, all surveys and performance visits at any building on my service route performed by a supervisor were done in my presence. I performed the work while the supervisor observed me and commented to you about my work performance."19

Mr. McGarvey asserted that he had spoken to many other Mechanics in the Bay Area and all of them stated that supervisors perform their surveys with the Mechanic present.

17 Employer Exhibit 5, page 4

¹⁸Union. Exhibit 20, page 2

¹⁹Union Exhibit 23, page 3

Mr. Ed Trujillo testified that he has been a Route Mechanic in the San Francisco area for approximately 30 years. About 10 or 11 years ago, he worked as a relief supervisor replacing Dick Meritt and Dick Betts, when they were on vacation. According to Mr. Trujillo

"During those periods, I performed supervisory surveys with service mechanics. In each instance, I went with the mechanics and observed the mechanic performing their work and checked their equipment, check charts, controllers, pits and car tops. I did this in accordance with the instructions I received from Meritt and Betts about how to perform these surveys. While acting as a Relief Supervisor, I never performed any survey without a service mechanic present."20

A number of the Union's witnesses asserted that they were told by their supervisor^s that the purpose of the OQS Program was to reduce the number of service visits that Mechanics would have to make to the units assigned to them. According to Norman Wheeler, a Route Mechanic in Sacramento, California, he was told by Mr. Robert Williams, the Regional Sales Manager, "that the OQS's visit would be in lieu of a service mechanic's visit and the service mechanic's frequency of routine visits would be altered accordingly to reflect the OQS visit and procedure close out." Mr. Nelson Ordonez, a Service Mechanic in the San Jose, California area, stated:

"Ever since the OQS position was created in San Jose, I have noticed a decrease in the frequency of my assigned visits to other buildings on my route. The frequency of assigned visits to my units in other buildings was reduced to a quarterly instead of a monthly visit as well on the majority of my route. I am aware that the OQS was visiting those jobs instead of me just as the OQS did at Microsoft."21

Mr. Ordonez also asserted that he was responsible for the Microsoft campus units in San Jose for the calendar year 2004. He was given a schedule of service, which integrated the ()QS with him

²⁰Union Exhibit 25, page 2 ²¹Union Exhibit 19, page 3

in terms of doing service visits to those campus locations.²² He stated that Mr. Wade Fernside would change from monthly visits to quarterly visits and that the OQS would visit the jobs on the months when we were not assigned to do so. According to Mr. Ordonez, Mr. Fernside, "specifically told the service mechanics in San Jose that the OQS would be reducing the frequency of visits to our units."23

Mr. Dan Sutton, a Service Mechanic in the San Jose area, testified similarly to Mr. Ordonez by stating:

"I attended Safety/OMMS meetings with my supervisor, Mr. Fernside, every , other week. At many of these meetings, Mr. Fernside told us that the frequency, . of our service visits to our route would be reduced by the OQS surveys of those units. Many of my scheduled visits were changed to quarterly visits instead of monthly visits around the time the OQS was introduced in San Jose; instead of me visiting these units, the OQS was assigned to visit them. This reduction in the frequency of my service visits remains to this day."24

Ms. Diane Applebee testified that she has worked for the Employer since September 1999 and served as an OQS from November 2003 to May 2004. She testified:

"I was informed in my OQS training that the purpose of the program was to reduce the number of service visits the service mechanics made and that one OQS visit and survey was supposed to substitute one visit by a mechanic. Sp, for example, if a building was supposed to receive quarterly service visits, if the OQS was scheduled to perform two of those visits, then the mechanic should be scheduled to perform only two visits there annually. If the program worked properly, according to my training, there would be a one-to-one substitution of OQS examinations for service mechanic examinations on the same unit."25

Mr. James Bender, the Business Manager/Financial. Secretary Treasurer for Local 19 located in Seattle, Washington, testified that he received a telephone call from one of his

²²Union Exhibit 19, page 3 ²³Union Exhibit 19, page 3

²⁴Union Exhibit 22, page 3

²⁵Union Exhibit 23, page 3

members, Dean Eixenburger, complaining about the fact that OQS personnel were replacing Mechanics on making routine visits to units. The supervisor, Gymm Kline, allegedly told Mr. Eixenburger and the other Mechanics in the Tacoma/Olympic Peninsula area that "he was changing the regularly scheduled monthly contractual visits to each customer to quarterly visits and would substitute with the OQS." Mr. Bender went on to state:

"On August 30, 2005 in the morning session of a safety meeting, Otis Branch Manager for Seattle Rey Luber displayed a graph relating profits to wages of mechanics showing that for every dollar, forty-three cents goes to wages. He then stated that we need to reduce that number and we will do so with OQS. This branch office has repeatedly stated, 'Get used to it, more are coming.'"26

The Union's witness at the arbitration hearing was Randolph "Randy" Giglione, who is employed by Local 8 of the Union. His Local covers the area from the Tehachapi line north to the Oregon boarder and includes points east to Reno, Nevada. His current position with the Union is Business Representative and Recording Secretary. He worked as a Service Mechanic for the Employer from June 2002 to July 2003 in the San Francisco area. He was assigned a route that covered most of the northern part of San Francisco. He described his duties with respect to his route in the following manner:

"To examine the equipment on a regular basis; make contact with the customer; ride; diagnose potential problems, repair them if necessary; or see to it that my supervisor was made aware of the issues so that he may have the proper repair team come and take care of it."27

In performing these duties, according to Mr. Giglione, he was sometimes called an Examiner, as that term is used in the contract. In addition to the examining work, he also "make -- lubricate; adjust, as needed, periodically; monitor, as I said before, the condition, anything -- any suspected

²⁶Union Exhibit 24, page 3

²⁷Transcript page 70

problems that may be cropping up."²⁸ He also did what he called "call-back" work, which required him to go back to a unit anytime there was a problem with that unit. He estimated that 65% to 70% of his time was spent on examination work, and 30% to 35% was spent on call-back repair work. Of the 90 to 100 units on his route, he would visit each of them approximately once a month.

When he would go to visit a unit, he did so because he was given an update list, which contained "Just the building address, the unit number, the machine number, the procedure_, to be performed, which was a 990, is what -- 990s, 991s, 992s, and 993s."²⁹ A 990 is a checklist, according to Mr. Giglione that sets forth the nature of the examination that he would perform. He stated:

"It would be my duty to go out and examine -- first, as it says here right out of the book, visit the customer. Get any possible complaints, any concerns that the customer may have. Ride the elevator. Listen to the ride. Listen to the machinery. Examine the car top, the hoist way, the pit, the machine room. And note and possibly repair any -- any deficiencies that were found.

Check the safety equipment, alarm bell, phone, door operation.

Generally make sure that your door reversal operation is working."30

According to Mr. Giglione, the work he performed in this fashion under the form 990s was frequently referred to as a "look-see." If he had found something to fix that he was able to fix during the "look-see" he would do so. Otherwise, he would record it and inform his supervisor so that it could be fixed later. There were other occasions, Mr. Giglione testified when he would

28 Transcript page 71

Transcript page 75

Transcript page 76

examine the units on a "look-see" and find nothing wrong.³¹ When he completed the examination, he would:

"..clear it on my phone.

The Nextel phones have a procedure. You can get into your route, enter the machine number, and it will come up. And then you clear it.

It asks you how much time you're putting towards it, and whatnot.

And you can indicate that you've taken care of the 990 that way."32

The phone was used, in this sense, Mr. Giglione stated, as a closeout procedure.

Mr. Giglione testified that the steps required to be followed using a Form 990are virtually identical to the steps the OQS is required to follow in the OQS survey .³³The 89₁0 lists the observations the OQS is to make during the survey. The 990 lists the observations the Mechanic is to make during his periodic surveys. The 990 states (1) visit customer; (2) ride the elevator; (3) observe operation of doors or gates; (4) check door protection devices; (5) replace lamps as necessary; (6) visit machine room and observe operation of equipment; (7) check elevator operation after making corrections or performing maintenance; (8) report any unsafe condition to your supervisor immediately; (9) close out procedure; (10) For B44 Section 12 only: sign and date log book F 2.5A(ii), if applicable. The form 8910 requires the OQS to (1) visit customer and speak to customer representative; (2) ride elevator and observe its Qperation; (3) survey buttons and fixtures; (4) survey door operation and reversal advice; (5) survey and test ADA phone operation; (6) survey carhop for cleanliness or other issues and note any problems; (7) survey pit for cleanliness or other issues and note any problems; (8) survey machine room and equipment, check unit record log. Note any problems; (9) survey for REM installation and

³¹Transcript page 78

³²Transcript page 80 and 81

³³Transcript page 85

operation. If not installed, recommend whether it can be; (10) survey building for open order opportunities and work with RSA; (11) report any unsafe conditions in building to your supervisor; (12) identify and report any needed preventative maintenance procedures; (13) close out OQS procedure and complete customer survey report.34

Mr. Giglione testified that the REM installation refers to a remote elevator monitoring system, which the Employer uses. This device monitors some basic functions of the elevator, such as leveling the oil and oil temperature. The information is reported electronically to the Employer's computers. Mr. Giglione was not familiar with the initials RSA, but he testified that if he saw an opportunity to sell a customer something that he felt the customer could use, he would bring it to the attention of the customer. The mechanics were encouraged to do that by the Employer, according to Mr. Giglione. It was Mr. Giglione's belief that the OQS personnel who completed these surveys closed them out in the same manner that mechanics did by using Nextel phones, and submitting the information electronically to the computer.

POSITION OF THE PARTIES

UNION

The Union argued that examination work is Elevator Constructor work under, the express terms of Article IX of the Collective Bargaining Agreement and the parties' past practice. Both the plain language of the Collective Bargaining Agreement, and the past conduct of the parties, compel the same conclusion: the "examination" work at issue in this case, consisting of observation, inspection and testing of elevator units, is within the exclusive jurisdiction of Elevator Constructors. The Union noted that the wording in the language refers to "regular

34 .

34Union Exhibit 7

examination or care of apparatus." The language does not say, the Union asserted, "examination and care." Even in the absence of contractual language restricting the right of management to assign work outside of the unit, Arbitrators have implied such a restriction in many cases, the Union argued. The testimony of Mr. Giglione, and a number of the sworn declarations, establish that Mechanics have performed examination work regularly in the past.

The work performed by the OQS is the same examination work performed by the Examiner. Mr. Giglione vividly demonstrated in his testimony that he performed each of the duties of the OQS listed in the 8910 procedure when he worked as an Otis Examiner. r The Employer did not contest any of the evidence provided by the Union establishing that the Examiner and the OQS performed identical functions. The Employer's claims that OQS do not perform an "examination" under the Collective Bargaining Agreement because they do not evaluate the condition of equipment in order to correct a problem or perform maintenance; rather, they merely observe and report the problems, is a distinction that is meaningless under the contract. When the OQS performs an examination, he or she is performing bargaining unit work. The OQS work is not traditional supervisory work. The practice is that supervisors_, performing annual surveys do so in the presence of the Mechanic. According to the Union, the old survey forms themselves seem to assume the Examiner was present to be observed in the performance of his duties by the supervisor.

The Union asserted that it is doubtful that OQS personnel are supervisors. The OQS do not perform traditional supervisory functions. They perform almost none of the duties of a maintenance supervisor. The OQS cannot be compared to consultants or the riding public. This argument fails for two reasons. First, the distinction between an examination with an intent to

personally repair a problem, and an examination with an intent to merely report the problem, is not meaningful under the Collective Bargaining Agreement, which recognizes "examination" and "care" as separate components of contract service. Second, the Employer's attempt to group OQS employees with people not employed by the Employer makes no sense because these people-have no-collective bargaining relationship-with-the-Employer or the-Union.

The Union asserted that bargaining unit work has been lost by the diversion of examination work to the OQS. The Union cited Nelson Ordonez' sworn statement as a demonstration of the Employer creating a schedule, which replaces mechanic examinations with OQS examinations. Changing market conditions do not excuse the Employer's violation. The only question before the Arbitrator is whether the Employer may accomplish its objectives by reassigning bargaining unit work to non-bargaining unit personnel. In implementing the OQS position, the Employer may feel it is somehow improving efficiency or quality of its elevator service, but at the same time, it has impacted the IUEC's work jurisdiction by reassigning a significant portion of the examination of apparatus to non-bargaining unit personnel. The Union cited a decision by David Vaughn involving the present parties in. Kone, Inc. and MEC, (2003) where the Arbitrator did not permit the Employer to engage in the factory installation of parts because the work belonged to the Union on site even though the factory installation was more efficient.

The Union stated that in seeking a remedy, it is not requesting that the OQS position be abolished. It only asks that the OQS employees be directed to stop performing bargaining unit work. The Union proposed that the Arbitrator issue an order declaring that an OQS visit to a jobsite may not substitute for, or be in lieu, of a Mechanic's inspection. It asks the Arbitrator to

issue an order requiring that a Mechanic be present when an OQS visits an elevator or escalator unit. The Arbitrator should direct the Employer to refrain from implementing schedules such as the one provided at Union's Exhibit 19 in which OQS examinations are substituted for Mechanic examinations. The OQS employees should be prohibited from performing closeout procedures.

The Employer should be required .to provide the Union with regular reports showing both the OQS and Mechanic visits to the same jobsites until the expiration of the Collective Bargaining Agreement. Finally, the Union asks the Arbitrator to retain jurisdiction over this matter until the expiration of the Collective Bargaining Agreement.

EMPLOYER

The Employer argued that the Union failed to establish a violation of the Collective

Bargaining Agreement. Notwithstanding the untimeliness of the grievance, the grievance must be dismissed on the merits or lack thereof because the Union had the burden to establish, by a

preponderance of the evidence that a violation occurred. Further, the Union had an obligation to establish damages, which it also has failed to establish. The Employer asserted that one of the most striking aspects of this arbitration is the extraordinary opportunity given to the parties to prepare and present their evidence. The OQS Program began in April 2002 and it is hard to

believe that the Union was not aware of the OQS almost immediately. Union representatives

met with high-level Employer management. The Union was not dormant in the three-year period between the inception of the OQS Program and the arbitration. The Union introduced 10 Declarations and/or statements and other documents combining for 346 pages of documentary

evidence. The Employer submitted 21 Declarations and 247 total pages of documentary evidence. In what could be described as overkill, each party presented a live witness. The most

remarkable aspect of this case is the Union's utter failure to present any evidence to support its position. What the Union did was present unfounded opinions of what might happen as a result of the OQS Program. The Union has not shown through admissible evidence, or otherwise, one shred of evidence of Otis assigning bargaining work to an OQS anywhere in the country. The Union conceded at the hearing that there were no damages suffered, indicating that it was concerned about the future. Obviously, there are no damages because there was no evidence that the OQS performed bargaining unit work or even that any bargaining unit work was lost.

The Mechanics' regular examination includes repair work -- observe and repair, as opposed to the OQS survey, which is, observe and report. The Mechanic examination requires the Mechanic not only to observe, but to inspect, which may require removing certain pieces of equipment to fully investigate. The examination also requires the Mechanic to perform an operational check after the work is performed. The supervisor survey and the OQS survey require only observation and reporting, not the full-blown inspection, diagnosis, repairs, or final operational check. The Employer has a right to supervise employees, including the right to ensure they are performing assigned work. Not only does the Employer have_,, the right to supervise employees, it has the unqualified right to survey the Mechanics' work to ensure high quality service standards are being met. Oversight and supervision of the Mechanics, including ensuring that they are performing assigned work is essential to Otis relations with its customers. The OQS Program is an essential tool in ensuring that the Mechanics are in fact performing the tasks assigned and in ensuring that Otis' high service standards are being met.

The work in dispute is not bargaining work. The OQS survey is not addressed by the

Collective Bargaining Agreement. The OQS survey is identical to the historical supervisor

survey, and has never been conducted by bargaining unit members. The Union asserted that the OQS survey and the Mechanic examinations are the same thing. The Employer asserted that the Union's own witness clearly testified to the critical differences between Mechanics examination and OQS survey. The Service Mechanic performs an examination also known as a 990 procedure, which is captured in the OMM library of maintenance steps. Each and every 990 procedure requires the performance of maintenance and/or repairs by the Mechanic. Mr. Giglione confirmed this requirement by testifying that the examination requires the Mechanic to perform repairs, as necessary. The OQS survey clearly is not the same as the contractual "regular examination or care." The OQS survey has never been conducted by Union represented employees. The OQS survey is the same as the historical supervisor servey. Supervisors, whether they have an OQS to help still perform the same survey. The supervisor survey has always been a valuable tool for purposes of quality control, supervision and customer relations. The advantage to having an OQS assigned to a particular office is that the supervisor may send the OQS to a particular site for more frequent surveys of equipment, thereby monitoring the Mechanic's work more often and receiving better feedback on the quality of the maintenance being performed. The purpose of the OQS Program is to help supervisors monitor the quality of maintenance.

The OQS Program has not decreased bargaining unit work. Mechanics' scheduled visits have not decreased as a result of the OQS Program. The Union cannot, and has not, challenged the right of the Employer to schedule the frequency of examinations by Service Mechanics. The OMM schedules are but the latest example of the Employer exercising its right to schedule examinations. Supervisors have always scheduled the Mechanics' visits to customer sites,

whether for an examination (990) or repair work. Neither the Mechanics, nor the Union, have ever scheduled Mechanic visits. Although it is clear that a Mechanic's scheduled visit to a particular customer may be reduced as a result of information provided by the OQS to the Supervisor, the Union has not, and cannot introduce evidence of one incident where an OQS has conducted a survey in lieu of a scheduled Mechanics' examination. The OQS survey is not a substitute for a Mechanic's examination. The Union apparently believes the schedule attached to the Nelson Ordonez Declaration supports its claim that the OQS survey is a substitute for a Mechanic examination. Mr. Ordonez claims that prior to the schedule, he had visited each: f the listed buildings once per month, and now visits only quarterly, and the OQS was assigned to visit the units once per month instead of him. The schedule, the Employer asserted, merely. shows columns with building numbers and months by quarters with either no visit, or an OQS or Mechanic's visit, and a list of procedures to be performed each quarter. Neither the schedule, nor Mr. Ordonez' Declaration, shows that the OQS assigned to survey the equipment at the Microsoft campus in San Jose is doing bargaining unit work of any kind. The Employer acknowledged that the scheduled visits to customer sites has .decreased over the last several years as a result of improved equipment, not as a result of the OQS Program. The supervisor survey does not require the presence of a Mechanic. The Union has apparently confused the supervisor survey with the field evaluation and its claim is simply false.

The Employer concluded by asserting that the Union's grievance is untimely and should be denied. The OQS program was implemented in April 2002. The Union and the Employer met concerning the program in the fall of 2002. According to the terms of the Collective Bargaining Agreement, a "grievance" must be asserted orally within ten working days of the

event giving rise to the grievance, and if the matter is not resolved at that step, must be submitted in writing within ten working days. The Employer cited that the right to contest arbitrability before the Arbitrator is not waived merely by failing to raise the issue of arbitrability until the arbitration hearing. The Employer raised the issue of arbitrability at the hearing on September 28^th and requested dismissal of the Union's grievance as time barred. The Employer renews its request herein. For this reason, and all the other reasons stated, the Employer asked that the grievance be denied.

DISCUSSION

The Arbitrator will address the Employer's motion to dismiss the grievance on the basis that it is not timely. The Employer asserts that it implemented its OQS Program in April 2002. It asserts that the Union and the Employer had discussions concerning the program throughout 2002. When the Union finally chose to file its grievance, it was long after the ten days set forth

in the contract for purposes of filing grievances. The Employer concedes that it did not raise the issue of timeliness at any point prior to the day of the arbitration hearing. However, the Employer asserts that according to "How Arbitration Works" by Elkouri and Elkouri, it is permitted to raise the issue of arbitrability even at the arbitration hearing. The Arbitrator

disagrees with the Employer's analysis. First, the nature of the grievance that is being presented

to the Arbitrator is an ongoing grievance. Each day the Employer continues to use OQS personnel in a manner, which the Union believes violates the contract, renews a grievance for the

Union. The Employer's appropriate request would not be to dismiss the grievance on the basis of timeliness, but to limit the imposition of a remedy to the period of ten working days prior to

the date that the Union filed the grievance. Secondly, the purpose of a grievance procedure is to

replace the system of discovery used by courts in the United States in normal civil proceedings. The function of a grievance procedure is so that the parties will develop a full understanding of each other's case prior to moving the matter to the Arbitrator. It is the intention, in the Arbitrator's opinion, of a grievance procedure in a Collective Bargaining Agreement that disputes be resolved at the lowest possible level. To resolve disputes at this level, reduces the conflict among employees and management, and minimizes the cost to the parties of having to resolve dispute.

Allowing a party to sit on its hands and hide, or fail to disclose a defense until the matter is before the Arbitrator, frustrates these clear purposes of a grievance procedure. The Employer, if it believed that the matter was untimely at the time the grievance was filed, could have raised that with the Union and, if the Union agreed, the matter could have been withdrawn without any further expense either to the Employer or to the Union. To allow the matter to proceed as far as it did, the Employer is imposing costs on the parties, which are unnecessary and are contrary to the intent of the Agreement. The Employer presented no evidence, whatsoever, with respect to why it was not able to raise the issue of arbitrability prior to the day of the arbitration hearing. Had the Employer had some reason which prevented it from raising the question earlier, then presenting it at the arbitration hearing might have been permitted. This is what the Arbitrator believes the Elkouri and Elkouri book suggests. For all these reasons, the Employer's request that the matter be dismissed because it is untimely is rejected.

The Employer asserted that the Union has the burden of proof, which is correct. The Employer asserted that the Union presented no evidence that the contract has been violated by OQS personnel performing the surveys that they are assigned to perform. Part of the Employer's

assertion is that the survey work being done by the OQS personnel is not the type of work that is done by bargaining unit personnel. The Arbitrator disagrees. The survey being done by the OQS is virtually identical to the survey that is done by Mechanics with the exception that when a Mechanic does a survey and finds something that can be repaired, the Mechanic does do the repair if the Mechanic is able to do it at the time. On the other hand, there are numerous occasions where Mechanics do examinations in the field, which are virtually identical to the examinations being done by OQS personnel and no needed repairs are discovered. In ,those circumstances, the examination is completed and closed out with nothing being done more than simply looking at the equipment as the OQS looks at the equipment. To make an argument that there is somehow a distinction between the examination done by the OQS personnel-and the Mechanics requires a great deal of hair splitting. There are some things that the OQS does not do, such as making actual hands on repair. Aside from that, the work is identical.

The question the Arbitrator believes that the parties have presented asks whether if the OQS personnel and the Mechanics are doing virtually identical work, does the contract prohibit the OQS from doing so. It is the Arbitrator's opinion that the contract does not prohibit the OQS personnel from doing virtually the same work that the Mechanics are doing with respect to the examinations that they conduct of the equipment involved. The reason that there is no violation in this respect is because the survey work done by the OQS personnel is virtually the same as the survey work that has been done by supervisors for years. However, the fact that the work is virtually identical does not mean that no contract violation has occurred at all. The Employer's witnesses made it abundantly clear that the purpose of the Maintenance Supervisor's survey "is to monitor the Mechanics' work and to assure customers that the Mechanics are supervised."

The same phrase was used in virtually every one of the Declarations presented by the Employer to the Arbitrator in this proceeding. It is not clear that the survey work being done by the OQS is for the purpose of monitoring the Mechanics' work and to assure customers that the Mechanics are supervised.

Obviously, management has a right under this Collective Bargaining Agreement to supervise the Mechanics that are out performing maintenance work on customer units. The Employer has a right to assure its customers that its Mechanics have supervisors who are supervising the work that is being done. The Declarations from the Employer's witsses indicate that supervisors in the past would do these types of surveys to make sure pat the Mechanics were performing the work that was expected of them. However, the evidence also establishes that frequently when these surveys were conducted, they were done with a Mechanic present so that the supervisor could actually observe the Mechanic. Having the Mechanic present when the supervisor was there observing would, of course, further enhance the presentation to the customer that the Mechanic was being supervised. Under the OQS Program, the OQS personnel do not conduct their surveys as a general rule when Mechanics are present. It would appear to the Arbitrator, based on the record, that most of the surveys are conducted in the absence of the Mechanic.

To the extent the OQS program supplements the review of Mechanics' work, which has been conducted by supervisors, it is not a violation of the Collective Bargaining Agreement. To the extent the Employer intends to use OQS personnel to replace the route examinations that are being done by Mechanics, it is a violation of the Collective Bargaining Agreement. The Employer asserted that the work schedule at the Microsoft campus in San Jose does not

demonstrate that OQS personnel were used in lieu of Mechanics to conduct surveys of the units at those facilities. To the contrary, it appears to the Arbitrator that the supervisor in charge of that area was using OQS personnel in lieu of sending Mechanics out to conduct those same surveys. In other words, the OQS was not being used at that location to survey the work of the Mechanic and assure the customer that the Mechanics were being supervised. Instead, the OQS personnel were being used to survey the equipment in lieu of sending a Mechanic out. The Arbitrator suspects that the OQS personnel are paid less than Mechanics and it is, therefore, cheaper for the Employer to send an OQS personnel to conduct a routine examination than it is to have a Mechanic perform that same examination. However, to do so is clearly a violation of the provisions of the contract, which make that kind of routine examination work the exclusive province of the Mechanics.

The further evidence suggesting that OQS may be used by the Employer at the present time to replace the examination work being done by Mechanics is the testimony or statements given by the various witnesses who reported what they were told by their supervisors was the purpose of the OQS Program. A number of the statements indicate that their supervisor told them specifically that the OQS was going to be used as a means of reducing the number of visits that Mechanics would make to any particular location. To the extent that supervisors understood that this was the purpose of the OQS Program, then the OQS Program violates the terms of the Collective Bargaining Agreement. To the extent supervisors used the OQS personnel as a supplement to their own responsibility to conduct annual surveys, then the OQS Program does not violate the Collective Bargaining Agreement. The Employer is permitted to replace the work

of one supervisor by using another supervisor. The Employer is not permitted to replace the work of a bargaining unit person by using a non-bargaining unit person.

The Employer argued that it is not within the province of the Mechanics or the Union to schedule the number of visits to any particular unit. The Arbitrator would agree with that analysis. However, it is not within the province of the Employer to schedule OQS personnel to replace Mechanic visits to various locations as a means of substituting their reports for that which would normally be received from the Mechanic. For the Employer to schedule WS in this fashion given the nature of the examination conducted by the OQS personnel would be a violation of the Collective Bargaining Agreement. Whether this has been done on a regular basis is something that is not clear in the record. That it has been done at least on occasion, in the Arbitrator's opinion, is demonstrated by the record before him. The clearest demonstration is the circumstance at the Microsoft campus in San Jose. It is not appropriate to put the OQS personnel in a rotation program with Mechanics. To have Mechanics and OQS on the same sheet of paper apparently rotating, on its face, is a violation of the Collective Bargaining Agreement. OQS personnel should not integrate and rotate with Mechanics. The supervisor should schedule Mechanics to make visits as frequently as a supervisor deems it to be appropriate. The supervisor should use OQS personnel to replace the visits that the supervisor would otherwise make. The supervisor should not mix the two by rotating OQS and Mechanics to make these types of examinations and surveys.

The examples in the record the Union presented showing that certain OQS personnel performed more than simply an examination are not relevant to the resolution of the issue before the Arbitrator. The Arbitrator has no doubt that the Employer's representations that it was not

the intention of the OQS Program to have OQS personnel perform these types of functions is credible and is supported by the evidence. The OQS personnel, who did this, in all likelihood, did it on their own without authorization from their supervisors. In some instances, it appears that OQS were disciplined for doing so. The Employer's position that the OQS personnel do not do any repair work is consistent with the contract that would prohibit them from doing so. The Arbitrator in this respect has chosen to ignore the complaints made by the Union that certain OQS personnel were actually doing hands on repairs.

In summary, the contract permits the Employer to use OQS personnel to substitute for supervisor surveys. However, the contract does not permit the Employer to routinely use OQS personnel to substitute for Mechanics who would otherwise perform regular routine surveys and examinations. To schedule OQS personnel in a manner that reduces the number of visits that would be made by Mechanics or to rotate the Mechanics and OQS personnel in carrying out these surveys or examinations is a violation of the Collective Bargaining Agreement. The example of the Microsoft campus in San Jose would appear to the Arbitrator to be such a violation of the contract where the supervisor in charge of that area placed OQS and Mechanics on an assignment sheet rotating them between those buildings for these types of examinations. The fact that OQS, when they do their survey, do not actually do repairs does not minimize the violation because the essence of the survey is identical to the survey that would be done by the Mechanic. The only thing not done would be repairs, which in many cases Mechanics would not do because no repairs would be necessary, or the Mechanic was not in a position at the time to do the repair. The Employer is not permitted by the contract to supplant the work done by

Mechanics by using OQS personnel to reduce the amount of work that Mechanics are obligated to perform.

In its brief, the Union asked that the Arbitrator order the Employer to do a number of things because of the Employer's violation of the Agreement. The Arbitrator agrees with the Union that the use of OQS personnel made by the supervisor at the Microsoft campus facility in San. Jose reflects a violation of the Collective Bargaining Agreement because the OQS was used in rotation with the Mechanics to perform survey work at those locations. In this respect, the Employer's violation warrants an order from the Arbitrator that the OQS visit to a jobsite may not substitute for or be in lieu of a Mechanic's inspection. The Employer should not use a schedule, such as that which is in evidence from the Microsoft campus showing that the supervisor is using OQS and Mechanics interchangeably to perform routine examinations of various units. To assure the Employer complies with this obligation, the Arbitrator is going to direct the Employer to provide to the Union a regular report showing the number of routine visits assigned to Mechanics and the number of visits assigned to OQS personnel at the same jobsites through the expiration of the Collective Bargaining Agreement. The document is intended to demonstrate that the OQS personnel are not being used in substitution for the Mechanics. It should, therefore, include the date of the visit for the Mechanic and the work or task done by the Mechanic during that visit. It should also show the date of the visit for the OQS personnel, and any work that the OQS personnel reported needed to be done. The reports should also include indications from both the Mechanics and the OQS personnel when no work needed to be done.

The OQS Program has to supplement the work of a supervisor, and not be a replacement

for the work of a Mechanic under the contract. Based on the evidence from the witnesses the

Employer presented during the hearing, there is no question that the survey work done by the supervisors was not done as a replacement for work that would otherwise be done by Mechanics. The testimony and statements indicate that the surveys done by supervisors were primarily done for the purpose of reviewing the work of Mechanics, which is an appropriate supervisory function. The Union's request that a Mechanic must be present when an OQS personnel visits the unit is not something that the contract requires. Supervisors may visit any of the properties without a Mechanic present and if an OQS wants to make a visit without a Mechanic the contract permits that. The Union also asks that the OQS be prohibited from dos* out procedures following an examination. The contract does not prohibit the OQS from closing out its survey by telephone as it presently is being done. There is no prohibition in the contract from having an OQS make an entry on a logbook. OQS may make their entries as supervisors may make an entry. The only thing the contract prohibits is the Employer from using OQS as a substitute or supplement to Mechanics. The Employer may only use OQS as a supplement to supervisors.

The Union asked that Arbitrator retain jurisdiction over this matter until -the-expiration-of

the Collective Bargaining Agreement. The Arbitrator will only retain jurisdiction over the obligation that he has imposed on the Employer to provide reports to the Union showing the visits made by OQS and the visits made by Mechanics, which are routine examinations. These reports do not include callbacks or other scheduled maintenance, but only assignments made by supervisors that Mechanics or OQS engage in a routine examination or survey.

AWARD

To the extent the Employer has used OQS personnel in San Jose, California as a substitute or in rotation with Mechanics to perform work, particularly at the Microsoft campus, it is in violation of the Collective Bargaining Agreement. OQS personnel may be used as a substitute or supplement to supervisors who perform supervisor survey work. OQS personnel may not be used as a supplement or substitute for Mechanics who perform similar, or practically identical examinations on a routine basis. The Employer is directed to comply with the Arbitrator's remedy, which is set forth above.

IT IS SO ORDERED.

Date: January 23, 2006

Gerald R. McKay, Arbitrator