IN THE MATTER OF ARBITRATION
BETWEEN
OTIS ELEVATOR COMPANY
AND
INTERNATIONAL UNION OF
ELEVATOR CONSTRUCTORS
LOCAL 135
DECISION IN
GRIEVANCE INVOLVING UNION'S
ALLEGED INTERFERENCE WITH
UNLOADING AND HANDLING OF
MATERIALS
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AAA CASE NO.:
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14 300 02310 03
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GRIEVANCE:
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The grievance protests the Union's
alleged interference with the Company's unloading and handling of materials
at a construction site.
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AWARD:
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The grievance is denied.
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HEARING:
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September 29, 2004; Myrtle Beach, S.C.
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ARBITRATOR:
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Edward J. O'Connell
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APPEARANCES
For
the Company For
the Union
Eric D. Jones, Attorney Robert
Matisoff, Attorney
Thomas P. McGinty, former Winifred
V. Kao, Attorney
Construction
Superintendent Dana A. Brigham,
General President
Dean A. Schleicher, Regional
Safety Manager Ed Gliham, Local 135 Business Representative
William A. Kom, Regional
Field Donald L. Brown, Local
135 Business Manager
Operations Manger Curtiss
Devillers, Local 41 Business
Michael J. Loeffler, Field
Support Manager Representative
James Walker, former
Executive Director NEII
ADMINISTRATION
By
letter dated November 17, 2003 from the Philadelphia Regional Office of the American
Arbitration Association, the undersigned was notified of his selection to hear
and decide a matter then in dispute between these Parties. A hearing was held
on September 29, 2004, where the Parties presented testimony and evidence
in support of their respective positions. The record was closed upon receipt of
Post Hearing Briefs, and the matter is now ready for final resolution.
GRIEVANCE AND
QUESTION TO BE RESOLVED
The
Company filed the following consolidated grievance (Joint Exhibit 2) on June 25, 2002:
Beginning
on or about April 15, 2002, Local No. 135 interfered with the Company's
unloading and handling of material at the Westin Hotel job site in Charlotte, NC. The
Local's violation has continued through at least June 18, 2002. This interference
has occurred in three forms: (1) the Local claims that it is a violation of the
labor agreement for the Company to utilize an extended boom forklift to unload
and move material, and/or (2) the Local failed to recognize "unusual
Conditions" at this job site, as contemplated by the parties in Article
IV, Par. 1, and/or (3) disruption at the job site caused by the local Business Representative's
action on the job site. As a result, the material was/has not been unloaded in
an efficient manner resulting in substantial added labor costs to the Company.
The
question to be resolved is whether or not the Union violated the collective bargaining
Agreement when it: 1) interfered with the unloading and handling of elevator materials
at the construction site by claiming the Company could not use a Lull to unload
and handle materials; 2) failed to recognize "unusual conditions" at
the construction site; and 3) disrupted the efficient unloading of materials,
resulting in substantial added labor costs to the Company. If so, what is the
appropriate remedy?
CITED PORTIONS
OF THE AGREEMENT
The following
portions of the Parties' collective bargaining Agreement (Joint Exhibit 1) were
cited by the Parties:
ARTICLE IV
WORK JURISDICTION
Par. 2.
(a) The handling and unloading of all
equipment coming under the jurisdiction of the Elevator Constructor, from the
time such equipment arrives at or near the building site, shall be handled and
unloaded by the Elevator Constructors. Mechanical equipment such as a fork lift
or truck mounted swing boom may be used by the Elevator Constructors. A derrick
or crane can be used under the supervision of Elevator Constructors to handle
and unload the heavy material described in Paragraph 5(a). Where unusual
conditions are expected to exist prior to delivery of equipment at or near the
building site in regard to handling and unloading of equipment in the primary
or secondary jurisdiction of the local union, the Company shall contact the
Local's Business Representative to make appropriate arrangements for the
handling and unloading of such equipment. In areas outside the jurisdiction of
the local union, the Company shall contact the Regional Director.
Par. 5.
(a) Where heavy material is to be hoisted or
lowered outside of the structure, a derrick or crane can be used under the
supervision of the Elevator Constructors in the employ of the Company. Heavy
material under subparagraph (a) is confined to machines, controllers,
generators, trusses, or sections of trusses, plungers or cylinders.
(d) All other material is to be hoisted or
lowered by Elevator Constructors without the use of derrick or crane.
Par. 9. No restrictions
shall be imposed as to methods, tools, or equipment used.
FACTUAL
BACKGROUND
Otis
Elevator ("the Company") manufactures, installs and repairs
elevators, escalators and related equipment. The International Union of
Elevator Constructors ("the Union") represents the Company's elevator mechanics,
apprentices and helpers. For many decades the Company has had a collective
bargaining relationship with the Union. The most recent collective bargaining Agreement
between the Parties runs from July 9,
2002 through July 8, 2007. The collective
bargaining Agreement in effect at the time of the incidents involved herein (the
Agreement) ran from July 9,1997 through July 8,
2002.
In
April 2002, the Company participated in the construction of a new Westin Hotel
in downtown Charlotte, North
Carolina. The Company was awarded a
contract to install 17 elevators and two escalators for the 26-story building.
Since the construction site was in an urban downtown area, the space available
for unloading trucks and moving materials was severely limited. Additionally,
because the general contractor had not yet finished constructing the lobby of
the hotel, the Company was unable to store its installation materials there, as
was the normal practice. Instead, the Company and other contractors had to
store their materials in a basement level garage. In order to give contractors
access to the basement level garage, the general contractor constructed a large
"leave-out hole" in the ground in front of the hotel building. Contractors,
including the Company, were directed to lower construction materials down the
leave-out hole to the basement level below. Once the Company's elevator
installation materials were placed in the basement, the Company intended to
move the materials to the elevator shafts located in the basement level and
hoist the materials up the shaft to be installed.
Initially,
the Company used a machine referred to as a "Lull" to unload the
trucks and lower the materials down the leave-out hole. The Lull is a rough
terrain forklift, with a boom arm that moves up and down and telescopes
outward. The telescoping feature allows the Lull to raise or lower material at
least one story or more. The Company intended to use the Lull to unload and
lower the elevator equipment through the leave-out hole for a period of one
week to ten days. At that point, a ramp to the lower level of the parking
garage was to have been constructed, and the Company intended to use the Lull
to unload the trucks and move the material over a barricade and onto the ramp.
The Company then intended to use a regular forklift to move the material down
the ramp to the basement level storage area.
A
Union member observed the Company using the Lull to lower materials into the
leave-out hole, and reported its use to Union Business Manager Donnie Brown.
Mr. Brown contacted Union Business Representative Ed Gilham and asked him to go
to the construction site to investigate. Mr. Gliham arrived at the site on or
about April 25, 2002, at which time he observed the Lull lowering
materials into the leave-out hole, which included flat boards, counterweights, guide
rails, rail brackets and other materials used to install elevators. Believing
that the use of the Lull in such a manner violated the Agreement. Mr. Gilham informed
its members not to operate the Lull. He told them if they did, he would file
charges against them under the Union's discipline rules.
At
the hearing, both Mr. Gilham and Mr. Brown testified that they never objected
to the Company's use of the Lull to unload the materials, but only objected at
the time to the use of the Lull to lower the materials into the leave-out hole.
According to Gilham and Brown, the Agreement required that the lowering of the
materials down to the basement level had to be accomplished through the use of
traditional hoisting and lowering techniques, which only trained elevator
constructors could employ. The Company's Construction Superintendent, Tom McGinty,
testified that the Union told him that the Company could use the Lull, but not
the extended-boom feature. Thereafter, he said the Union told him
that the Company could not use the Lull at all. Company Field Support Manager,
Mike Loeffler, testified that he "may have been told" by the Union that the
Lull could be used to unload the truck.
In
an effort to resolve the dispute, Mr. Brown and Mr. McGinty met at the
construction site on the morning of April 26, 2002.
The Union agreed that the Company could unload the trucks and lower the
materials through the leave-out hole to the basement level. In return, the Company
agreed to pay the employees what they would have earned had the materials been manually
unloaded, moved and lowered to the basement using traditional hoisting and
lowering techniques. This agreement was memorialized in a handwritten document
(Joint Exhibit 3, the "April Agreement") and was executed by Brown, McGinty
and Mechanic-in-Charge Mark Dickerson. The April Agreement stated as follows:
Otis
agrees to pay 3 hrs per man per truck (rail trucks exempt) and 8 hrs per man for
material presently on the ground at College
St level to be placed in basement of
project. Only employees that are unloading trucks are entitled to above.
(Joint
Exhibit 3)1
According
to the Company, several days after entering into the April Agreement the Union reneged
on the Agreement and prevented the Company from using a crane to lower materials
through the leave-out hole. The Union witnesses testified, however, that they
never breached the April Agreement. They testified that at some point, on or
around May 1, 2002, the lobby was cleared and the Company was able to
move the materials through the lobby on dollies and lower the materials down
the elevator shaft. In any event, the record reflects that the Union was paid
for at least some of the hours of work agreed to in the April Agreement. According
to the Company, as a result of the Union's breach of the April Agreement, the materials had to
be moved manually, which resulted in additional labor costs.
Weeks
later, on June 26, 2002, and without prior notice to the Union, the
Company filed the instant grievance. Following unsuccessful efforts by the
Parties to resolve the dispute through the contractual grievance procedure, the
matter was appealed to arbitration hereunder.
____________________
1 At the hearing, several Company witnesses testified
that the April Agreement only allowed them to use a crane to unload the
material and lower it through the leave-out hole. However, the Union witnesses
testified that they agreed the Company could lower the materials throughout the
leave-out hole to the basement level using whatever mechanical means the
Company desired, including using a Lull. As indicated above, the April
Agreement does not specifically address this issue.
CONTENTIONS OF
THE PARTIES
Company Contentions
The
Company contends the Union interfered with its operations by directing its employees
not to use the Lull, threatening them with fines, and causing undue delay. It
asserts that the Union's actions substantially increased the Company's labor
costs, because it was forced to manually move material without the use of the
Lull. The Company also alleges it incurred rental expense for the Lull it could
not use.
Further,
the Company argues that the Agreement provides it with the right to unload and handle
material with the Lull. It points out that the Agreement allows the Company to
use "mechanical equipment such as a forklift" to unload and handle
material at a job site. The Company also points out that the Agreement provides
that "[n]o restrictions shall be imposed as to methods, tools, or
equipment used." The Company observes that the Lull is commonly recognized
in the construction industry as a forklift, and that it and other contractors
have used it on construction sites for decades. The Company asserts that
despite its right to use the Lull, the Union wrongfully "proclaimed" that it was not a forklift
under the Agreement and wrongfully instructed Company employees not to use it,
threatening them with fines.
The
Company disputes the Union's contention at the hearing that the Company can use the
Lull to unload materials from the trucks, but is not permitted to use it to
lift or lower the materials. It claims this distinction has no support in the
Agreement. Additionally, the Company states that there is nothing in the
Agreement to support the Union's position that the use of the Lull to lower
materials interferes with the elevator constructors' traditional work of
hoisting and lowering. The Company observes that the Union presented
no evidence that the use of the Lull either interfered with, or caused the loss
of, any hoisting work traditionally performed by Union members.
Additionally,
the Company emphasizes that the only restriction in the Agreement relative to
the use of "mechanical equipment" is the provision that cranes or
derricks cannot be used for handling anything other than heavy materials. It
argues that this provision does not restrict the use of forklifts or Lulls. The
Company states that the arbitral precedent relied on by the Union in support
of its position that the Lull cannot be used to lower materials is inapposite
because those cases involved different employers, different contract language,
or the use of dissimilar equipment.
The
Company stresses that the Westin hotel project herein was the only one where
the Union has questioned the Company's use of the Lull. It claims, moreover,
that the Parties' bargaining history reveals that the contract language adding
the right of the Company to use "mechanical equipment such as a forklift"
came about without any discussion or concern raised by the Union about limiting
how the equipment could be used and that the Union's only concern at the time
was that its members be able to operate it. In addition, the Company claims
that the past practice cited by the Union, of the Company allegedly conceding that the use of
the Lull violates the Agreement, is irrelevant. It maintains that one of the
circumstances involved a different employer, and both instances involved
settlements to avoid prolonged disputes.
According
to the Company, the Union violated the Agreement when it wrongfully interfered
with its right to use the Lull. The Company asserts the evidence establishes
that Mr. Gilham ordered employees not to use the Lull and that Mr. Brown
informed Superintendent McGinty that the Company could not use the Lull because
it was not a "forklift" under the Agreement. The Company contends
that the Union's "newly created theory" -- that it only objected
to the Company's use of the Lull to lower materials -- does not comport with
the facts. It claims that Mr. Brown repeatedly took the position at the hearing
that a Lull was not a forklift; that being the case, the Company alleges there
would be no basis under the Agreement for the Lull to be used for any purpose. The
Company also points out that Manager Loeffler's undisputed testimony revealed
that in his conversation with Union Regional Director Avery he was told in no
uncertain terms that the Company could not use the Lull for any purpose.
The
Company asserts that the Union repudiated the Parties' April Agreement that permitted
the Company to use a crane to lower the material through the leave-out hole. It
claims that this breach also violated Article IV of the Agreement which
requires the Parties to make "appropriate arrangements" when a particular
job site involves "unusual conditions." The Company observes that
several Union witnesses conceded that the conditions at the site were unusual.
It emphasizes that when Mr. McGinty testified that he did not believe the
conditions were difficult it was clear from his testimony that he was referring
to the conditions before the Union objected to the use of the Lull. The Company insists
that the conditions became difficult and unusual after the Union prevented
it from using the Lull, and the Union therefore had an obligation under the Agreement to
make "appropriate arrangements" with the Company to rectify the
situation. The Company states that the Union reneged on its obligation to make "appropriate
arrangements" when it repudiated the April Agreement.
Finally,
the Company contends that it is entitled to damages arising out of the Union's breach
of the Agreement. It believes that it is entitled to compensatory damages for
the economic harm caused by the breach; namely, the additional wages it was
forced to pay employees for the additional labor and the cost of the rental
equipment that it could not use. It also contends that it is entitled to an
award of attorney's fees and arbitration expenses as a result of the Union's bad
faith in contesting the Company's grievance. The Company argues that if the Union had been
acting in good faith, it could have merely filed a grievance when it learned of
the Company's use of the Lull, rather than threaten employees and prevent the Company
from using it. The Company contends that this violated the "work now,
grieve later" principle.
In
light of all of the above, the Company seeks to have the grievance sustained.
As a remedy, it requests a determination that:
1. the Lull is
"mechanical equipment such as a forklift', within the meaning of Article
IV, Par 2(a);
2. the Union
interfered with the Company's right to use the Lull;
3. the Union violated Art. IV, Par. 2(a) when it repudiated the
agreement to allow the Company to use a crane to unload and handle material;
4. the Union violated Art. IV, Par. 9 by seeking to impose
restrictions on the methods and equipment used by the Company to unload and
handle material;
5. the Union took this
case to arbitration without a good faith position.
Additionally,
the Company requests an order that the Union pay the Company $16,828.89 in compensatory damages
and the Company's attorney's fees and arbitration expenses.
Union Contentions
The Union initially
submits that any interpretation of the Parties' Agreement must be understood in
the context of their extensive bargaining history. Over the years, it states, because
of the strength of the its bargaining position it has been able to retain
significant control over work performed by its members. The Union points
out that the Work Jurisdiction clause of the Agreement dictates the manner in
which elevators and escalators must be assembled, as well as the manner in
which materials must be unloaded, hoisted and lowered.
In
that regard, the Union fails to see how "claiming" that the Company violated
the Agreement itself can constitute a breach of the Agreement. It emphasizes
that if this were the case, it would "chill" a union in carrying out
its duty to represent members. The Union insists that it does not dispute that a Lull may be
used to unload and move material pursuant to Article IV, Par. 2 of the
Agreement. Rather, the Union asserts that the violation of the Agreement in the
instant case was the Company's use of a Lull and its telescoping arm to lower
unloaded material through the leave-out hole, one floor below to the basement
level.
The Union maintains
that Business Representatives Gilham and Brown consistently and credibly
testified that their protest regarding the use of the Lull was directed at this
lowering activity. Former Company Field Manager Mike Loeffler corroborated
their testimony when he testified that his understanding of the Union's
objections "was the fact that we were using the extended boom forklift to
lower the equipment down what they call a leave-out." It believes that the
Company fundamentally misunderstands or, at worst, distorts the Union's
position. The Union argues the Company never sought from the Union
clarification as to the basis of its objection over the use of the Lull, and
therefore it must bear responsibility for its failure to do so.
In
addition, the Union asserts that there were no "unusual
conditions" as contemplated by Article IV, Par. 2. It observes that
Superintendent McGinty initially testified that he did not believe there were
any unusual conditions at the construction site. He later testified that because
of the "unusual conditions" caused by the Union's refusal
to operate the Lull, he negotiated the April Agreement with Mr. Brown, permitting
the use of a crane to unload materials from the trucks. The Union insists
that it never breached the April Agreement. Further, the Union asserts
that the Company paid the Union members the amounts owed to them under the
April Agreement, and there is no evidence that the Company at any time protested
the Union's alleged "repudiation" of the April Agreement, including in
the instant grievance.
The Union explains
that it recognized and acknowledged that some sort of accommodation needed to be
made to lower the materials into the basement because of the inability to bring
the materials through a lobby. It states that through the April Agreement with the
Company Mr. Brown agreed the materials could be moved to and lowered through
the leave-out hole by whatever mechanical means the Company wanted to use. The Union indicates
that this accommodation applied only to trucks arriving before May 1, 2002.
According to Mr. Brown, Mr. McGinty told him that after May 1, 2002,
arrangements would be made with the civil contractor to clear the hotel ground
level so material on trucks arriving after May 1st could be taken through the
lobby to the elevator shafts. From there, the Union claims the material was to
be handled according to the hoisting and lowering requirements in the Agreement.
The Union emphasizes that this is in fact what was accomplished and that it
never repudiated or reneged on the April Agreement.
In
the Union's view the Company is not entitled to any damages from the Union. It observes
that the Company is before the arbitrator in a rather "unusual
posture." In that connection the Union points out that when confronted by
the Union's objection to the use of the Lull, the Company never demanded that
the Union comply with its directives or grieve the matter if it believed the
Company was in violation of the Agreement. Instead, it emphasizes that the
Company entered into a written agreement with the Union allowing
it to proceed with the unloading and lowering of the material. The Union argues
the Company never indicated it was entering into the April Agreement
"under protest", or otherwise indicated that it intended to recover
damages from the Union for its refusal to allow it to use the Lull.
The Union stresses
that the foregoing indicates not only that the Company failed to mitigate any
damages suffered but, more importantly, it indicates that the Company willingly
consented to the Union's objection and only after-the-fact decided to
reevaluate its position. The Union calls attention to the fact that both McGinty and Brown
testified that they thought the dispute had ended with the negotiation of the
April Agreement.
The Union also
insists that the Company has failed to establish that it is entitled to the damages
it seeks. First, the Union maintains that any work hours cited for the unloading
of trucks without the use of the Lull should be rejected, since the Union never
objected to the Company's use of the Lull to unload materials. Concerning the
damages the Company seeks due to its inability to use the Lull to lower materials
into the building, the Union contends that Article IV, Par. 5 only provides for
the use of a crane or derrick to hoist or lower heavy material and makes no
provision for the use of a Lull to hoist or lower material. The Union
emphasizes that the use of a Lull to perform any lowering or hoisting work is a
violation of Par. 5, whether heavy material is involved or not.
The Union observes
further that the Company has recognized in other circumstances that the use of
a Lull to raise or lower material violates of the Agreement. The Union sees a clear
distinction between lowering material several feet from curb height and
lowering it a full floor level below the ground. From its standpoint, the fact that
the Company could have lowered the material by using thee parking ramp, had it
been usable, does not justify the Company's attempt to violate the Agreements
hoisting and lowering provisions. The Union also contends that any attempt by
the Company to seek damages as a result of the Union's objection over the use
of the Lull must be rejected, given the Company's failure to inform the Union
at the time that it did not agree with the Union's position on the use of the
Lull. The Union emphasizes that the Company should have let both the
employees and the Union know of its position at the time, rather than proceed
as if the matter had been resolved. It contends that the Company's actions in
entering into the April Agreement, and failing to at anytime challenge the
Union's position, belies that claim that the Company opposed the Union's position.
Additionally,
the Union asserts that under the Agreement a crane can only be used to lower
heavy materials or tools of the trade. The Union maintains that none of the items loaded into the
basement storage area fell within the scope of materials that may be properly
lowered by a crane pursuant to Article IV, Par 5. The Union's
insistence that these materials be lowered by traditional rigging and hoisting skills,
conforms with the provisions of the Agreement. Finally, the Union claims
that even if it were to be found that the Company was entitled to damages or costs,
the damage estimates and figures provided by the Company are unreliable and inaccurate.
On
the basis of the foregoing, the Union seeks to have the Company grievance denied.
DISCUSSION AND
FINDINGS
The
Company filed the grievance in this matter, therefore it must establish that it
is entitled to the relief sought. In the grievance the Company alleges the Union
interfered with the unloading and handling of materials at the Westin Hotel job
site in three ways. First, it alleges that the Union "claimed" it was
a violation of the Agreement for the Company to use the Lull. Second, it
contends that the Union failed to recognize "unusual conditions" at
the job site, as contemplated by the Agreement. Finally, the Company asserts
that, due to the Union's Business Representative's disruptive actions, it
could not efficiently unload its materials and thus sustained substantial
additional labor costs.
With
respect to its first contention, the Company has failed to point to any
contractual language indicating that the Union's claim that the Company had violated the Agreement
itself constitutes a contractual violation. Indeed, there is nothing in the
Agreement preventing either Party from asserting its position that the other
Party has breached the Agreement. As is very often the case when a union
believes an employer is violating a collective bargaining Agreement, the Union here was
merely stating its position that it believed the Company was violating the Work
Jurisdiction provisions of the Agreement by its use of the Lull. Given the language
of Article IV, the Union had an arguable, good faith basis for asserting that
the Lull -- with its telescoping extended boom -- performed tasks that went
beyond the traditional capabilities of a forklift. The Union's claim
that the Agreement was being breached, based on this good faith belief, did not
violate any provision of the Agreement.
On
the other hand, the Company also had a good faith basis to assert that it had
the right to use the Lull to unload and move equipment based on the contractual
"forklift" language and the previous use of a Lull. At this juncture,
therefore, it is significant that, although it could have, the Company did not
continue to use the Lull despite the Union claim that its use was a violation
of the Agreement. Had the Company continued to operate the Lull it could have reasonably
expected the Union to adhere to the fundamental principle of "work now,
grieve later" and this case would have then proceeded on a more typical
grievance arbitration track. If, hypothetically, the Union had
resorted to other means of protest the Company's claim of improper interference
would be resting on a more solid footing. Instead, matters did not proceed any
further. On April 26, 2002, the Company entered into an agreement with the Union to
resolve the dispute over the use of the Lull. The Company agreed to compensate
certain Union members for the wages they lost as a result of not being utilized
to unload and move the elevator materials to the basement level. In exchange
the Company was permitted to lower the material into the basement either by use
of a crane only, as the Company claims, or by whatever means it chose, as the
Union claims.
Thus,
it can only be concluded that the Parties reached an amicable resolution to
their differences over the Company's use of the Lull. The Company chose to
settle the dispute rather than continue to utilize the Lull and have the Union grieve or
otherwise pretest its actions. The fact that the Union did not file a grievance
over the use of the Lull supports a finding that the April Agreement resolved
the dispute.
Because
of this resolution, the Company is now estopped from alleging that the Union violated
the Agreement by claiming the Company could not use the Lull, or by directing
its members not to operate it. Accordingly, despite the extensive arguments
advanced by the Parties on this issue, it is unnecessary to address the
substantive question of whether the Agreement permitted the Company to use the
Lull.
At
the hearing and in its Post Hearing Brief, the Company acknowledges that it
entered into the April Agreement with the Union, but nevertheless contends the Union breached
that Agreement only two days later when it told the Company it could no longer
use the crane. This contention is not persuasive. First, the Company has not
established that the Union refused to allow it to continue to operate the crane
to lower materials into the leave-out hole. The Union denied that it did so, and
presented contrary evidence establishing that the Company ceased using the
crane because the lobby of the building was cleared and materials could be
moved into the lobby and lowered through the hoistways. There is also evidence
that the Company compensated Union members, according to the terms of the April
Agreement. Furthermore, the Company never alleged in its grievance that the Union breached
the April Agreement. Indeed, the Agreement is not mentioned at all in the
grievance. The Company's actions strongly suggest that both sides were
satisfied with the April Agreement's resolution of their dispute.
Finally,
the Company has failed to establish that the Union breached the collective bargaining
Agreement's "unusual conditions" clause of Article IV, Par. 2(a). The
clause provides that '[w]here unusual conditions are expected to exist prior to
delivery of equipment at or near the building site in regard to handling and
unloading equipment . . . the Company shall contact [the Union] to make
appropriate arrangements for the handling and unloading of such equipment."
The Union has presented evidence indicating that the conditions were not sufficiently
out of the ordinary as to trigger the "appropriate arrangements" requirements
of this clause of the Agreement. Additionally, the Company never contacted the Union to
discuss the alleged "unusual conditions" at the job site prior to its
rental and use of the Lull. In any event, even assuming this clause applied
here, the Union's willingness to enter into the April Agreement
constituted a sufficient "appropriate arrangement" to address the unusual
conditions alleged by the Company.
The
Company has failed to meet its burden of demonstrating that the Union
improperly interfered with the unloading and handling of materials at the
construction site and thus violated the Agreement. The grievance must therefore
be denied.
American
Arbitration Association
ARBITRATION
TRIBUNAL
In the Matter of the
Arbitration between:
Otis Elevator Company
and
International Union of Elevator Constructors, Local 135
CASE NUMBER: 14 300 02310 03
AWARD OF
ARBITRATOR(S)
I
(WE), THE UNDERSIGNED ARBITRATOR(S), having been designated in accordance with
the arbitration agreement entered into by the above-named parties and dated and
having been duly sworn and having duly heard the proofs and allegations of the parties,
AWARD as follows:
The grievance is denied.
January 31, 2005 _______________________
(Date) (Signature
of Arbitrator)
STATE OF
}SS
COUNTY OF
On this day
of , 20 , before me personally came and appeared
, to me known and
known to me to be the
individual(s) described in and who executed the foregoing instrument,
and he acknowledged to me
that he executed the same.
