ARBITRATOR'S
OPINION AND AWARD
In the Matter of Arbitration
Between:
OTIS ELEVATOR COMPANY
and
INTERNATIONAL UNION OF
ELEVATOR CONSTRUCTORS
Local 4
January 7, 2005
AAA Case No. 11 300 01634 04
Grievance: Installation of
Plunger/Cylinder
Before
Elizabeth Neumeier, Arbitrator
Representing:
The
Employer: Peter B. Robb, Esq.
Timothy E. Copeland Jr., Esq.
The Union: Paul
F. Kelly, Esq.
Statement of the Award: The
grievance is denied.
INTRODUCTION
This
case came to arbitration as a result of the following Order from the United States
District Court, District of Massachusetts, issued on June 17, 2004:
Upon
review of Plaintiff's Motion for Preliminary Injunction [#16] and Defendant's
Opposition to Plaintiff's Motion for Preliminary Injunction [#18], this
Court hereby finds that: (1) a collective bargaining agreement is in effect;
(2) the collective bargaining agreement contains a no-strike cause; (3) the
dispute over the installation of the plunger/cylinder mechanism is covered by
the grievance and arbitration provision of the collective bargaining agreement;
(4) the Parties have alleged breaches of the collective bargaining agreement by
each other; and (5) ordinary principles of equity warrant relief. It is,
therefore, ordered that, pending the outcome of arbitration over the
plunger/cylinder dispute:
1. Defendant Local 4, its officers,
agents, representatives, members, employees, and attorneys, and all other persons
in active concert or participation with them having notice from any source or
in any manner of this Order be and hereby are enjoined and restrained from calling,
causing, inducing, encouraging, authorizing, conducting, continuing in or
engaging in any strike, concerted work stoppage, concerted work slow-down, sit-down,
or refusal to work, or any other act in coercion or interference with Plaintiff's
normal operations;
2. Plaintiff's
bond shall remain in force and effect for the period that this Order is in
effect;
3. The Parties are to arbitrate the
dispute over the installation or the plunger/cylinder mechanism pursuant to the
Expedited Labor Arbitration Procedures of the American Arbitration Association;
and
4. Plaintiff, its officers, agents,
employees, and attorneys are restrained from imposing discipline on Defendant Local
4's members over contract disputes between Plaintiff and Defendant Local 4 and
from applying to this court for further equitable relief unless it has first
offered to Defendant Local 4 the opportunity to arbitrate the underlying
dispute pursuant to the Expedited Labor Arbitration Procedures of the American
Arbitration Association.
IT IS SO ORDERED. [J. X. #4.]
The
Union1 subsequently filed the following grievance:
Otis
has refused to continue the agreement regarding cylinders placed in the hole or
hoistway with a crane. The agreement by both parties is as follows: It was
agreed to remove the cover of the casing use a Crane to set the cylinder in the
ground for safety and to prevent damage to the PVC Liner by resting it on the
casing. It was also agreed that when the construction team was assigned to the
job, rigging would be set up and the cylinder would be removed from the ground,
the casing cut and the cylinder lowered back into the hole. On May 7th
Otis Elevator stated that they will not remove them from the ground after they
have been placed in the wellhole. [J.X. #2.]
and requested as remedy:
Continue
honoring both parts of the agreement. Pay 8 team hours on the following jobs:
Mashpee MA, Falmouth ME, Exeter NH. $39.395 is mechanics wage. $27.58 is 70% apprentice
wage and $10.90 benefits each. One team hour equals $88.775. One team hour ($88.775)
times eight hours (8) equals ($710.20). Total amount for three jobs equals $2, 130.80.
[J.X. #2.]
The
Company denied the grievance as being untimely and on the merits.
The
undersigned arbitrator was selected pursuant to the AAA rules and hearings were
conducted on September 9, October 18, and October 19, 2004.
Both parties were represented by counsel, witnesses were sworn and a transcript
was made of the proceedings. Both parties filed post-hearing briefs which were
transmitted by the AAA with a due date of January 10, 2005
to render the award.
STIPULATED ISSUE
At
the arbitration hearing the parties stipulated to the following issue:
Whether
the Company violated Article IV and past practice consistent with the contract
by using a crane to install plunger/cylinder mechanisms in the wellholes in the
Local 4's jurisdiction? If so, what shall be the remedy?
____________________
1 As used herein "the Union"
refers to Local 4 of the IUEC. The instant grievance was filed solely by Local
4 which represents IUEC members in Maine, New Hampshire except for two counties, and eastern Massachusetts.
Where the international Union is referenced IUEC will be used.
BACKGROUND
Since
the early 1900s the Company has had a collective bargaining relationship with
the IUEC. For a period of time the Company was a party to a series of
five-year, industry-wide collective bargaining agreements negotiated by the
National Elevator Industry, Inc. (NEII), known as the standard agreement. In
1987 Otis withdrew from industry-wide bargaining and negotiated its own
agreement with the IUEC. In 2002 other companies also withdrew from NEII for
collective bargaining purposes. The language in dispute here, contained in the July 9, 2002-July 8,
2007-Otis-IUEC agreement, has not been altered from the language contained in
the standard agreement.
A
variety of unions are involved at any construction site and each of their collective
bargaining agreements contains work jurisdiction language. Cranes are generally
operated by Operating Engineers employed by contractors and covered by their
own collective bargaining agreements. The Otis-IUEC contract contains a
detailed work jurisdiction clause in Article IV.
The
Company constructs and installs, modernizes and maintains elevators, escalators
and other similar devices. Among the types of elevators are traction elevators,
which use a series of wire cables attached to sheaves and counterweights, and
hydraulic elevators, which use a fluid-driven plunger contained inside a
cylinder.
For
so-called "holed" hydraulic elevators, the plunger/cylinder
mechanism, commonly referred to as a jack, goes in a wellhole dug beneath the
building. The wellhole is dug before construction, as deep as the jack is long
plus three feet. To prevent the wellhole from collapsing and to keep out water
and debris, a steel casing is placed in the wellhole and a cap is placed on
top. In some cases, such as where there is a risk of snow or water building up,
the steel casing extends above the pit floor.
Depending
on the height of the building, the jack may be one-piece or multiple pieces.
Each section of a multiple-piece jack is hoisted into the hoistway and
connected by Elevator Constructors. Some one-piece jacks are so long that it is
physically impossible to get them into the hoistway to lower into the wellhole
except through use of a crane to lower the jack from the top. On occasion the
jack is delivered before the hoistway structure has been built.
The
instant dispute involves only holed, one-piece jacks.
One-piece
jacks encased in PVC liners are delivered to the site by special trucks. They
range in length and weight depending on the number of stops or stories.
Elevator Constructor Mechanics, Helpers and Apprentices unload the jacks from
the delivery trucks, performing all hooking and rigging and signaling the crane
operator.
There
is often a passage of time between the delivery of the jack and its actual installation.
Jacks left on the ground would be at risk of damage. Therefore, when the jacks
are delivered they were placed directly in the hoistway and secured or directly
into the wellhole which is then recapped.
The
construction crew doing the installation may be different from the crew that unloaded
the jack. To complete the installation the Elevator Constructors must remove the
cap from the wellhole, cut the casing flush with the floor, and plumb the jack,
among other work.
The
method of plumbing taught in the apprenticeship program uses a "Spider Bob"
suspended above the top of the cylinder and lowered all the way down the cylinder,
i.e., plumb over distance. Thus use of a Spider Bob requires that the plunger be
entirely removed. (UX #1, pg. 9-12.) Company witnesses described alternative methods
of plumbing that can be done with the plunger in place, i.e., using machinist levels
on four or five different planes and a target board with a light that reflects
trough a hole in the plunger showing a halo on the floor.
Prior
to 2001-2002 jacks were shipped from the factory with rubber shipping rings to
hold the plunger in place and prevented scratches or other damage to this
precision-machined part. During the installation process the shipping rings had
to be removed, which meant that the plunger in a jack already in the wellhole
had to be completely taken out of the hole. The manufacturer now ships the
jacks with shipping rings that slide and become part of the permanent stop
ring.
The
skills to do this and associated work, including all hoisting and rigging, are taught
in the National Elevator Industry Educational Program (NEIEP). Since 1996 Massachusetts
has regulated the apprenticeship program and licensed Elevator Constructors.
Equipment used includes beam clamps, devises, slings, and chain falls of various
capacities. There are different types of chain falls and spur geared chain
falls are available in capacities from 500 lbs to 12-15 tons. (UX #17, pgs.
14-15.)
The
events leading to the above-quoted court Order took place in the spring of 2004
and are not substantially in dispute. The Business Manager for Local 4, who had
assumed that position in October 2003, testified that he learned from
discussions with members in the field that the Company had directed them to not
pull the jack out of the wellhole after it had been set in the wellhole by a
crane. He had discussions with the Company's Branch Manager, who is based in Portland, Maine, about
the performance of this work.
Company
and Union witnesses testified about the May 2004-events consistent with their
written correspondence set forth below, which reveal much of the essence of this
dispute.
On May 5, 2004, the
Branch Manager sent the Business Manager the following letter:
Enclosed
please find a copy of the letter concerning two grievances previously filed by
Local 4 regarding the use of a crane to hoist and lower plungers and cylinders.
As you can see, Otis denied the grievances and, to my knowledge, Local 4 chose
not to pursue them further. Also, as you can see, there are no restrictions
mentioned on Otis' right to use a crane to hoist and lower plungers and
cylinders. It is my understanding that [K. M.] under your directive has
instructed our mechanics not to perform this work unless they remove the entire
plunger and cylinder from the wellhole after it has already been set by the
crane. I can find no basis for Local 4's position in the Otis Elevator Company
Agreement, and obviously, given the decision on the previous grievances that
I've attached, this directive is based on incorrect information. Otis will
proceed with the installation of plungers and cylinders according to its
long-standing practice and will not remove the entire plunger and cylinder.
This
work is to proceed without interruption. Please direct [K. M.] accordingly. If
you have any questions, please feel free to contact me at.... [UX #2, page 1.]
The
referenced enclosed letter was dated February 16, 1995,
from the Company's then-Director, Labor Relations to the IUEC's then-Assistant
to the General President and states:
At
our National Arbitration Committee Meeting on February 10, 1995, we discussed
Grievance #280 and 281 - Local 4 Boston.
Grievance
#280 concerns Otis using a crane to hoist and lower one piece plungers and
cylinders into place under the supervision of Elevator Constructors in its
employ. They could not be hoisted up the hoistway due to the limited dimensions
of the space through which they would have to be moved in relation to their
length. Use of the crane is permitted in such cases by Par. 5 of Article IV and
the grievance is therefore denied.
Grievance
#281 concerns Otis hoisting and lowering one piece plungers and cylinders with
a crane before a building was erected at the site. Article IV, Par. 5 permits
the use of a crane under the supervision of Elevator Constructors "outside
of the structure" (in other words, not up the hoistway) by simply saying, "where
heavy material is to be hoisted, etc." This was a case where heavy
material (which specifically includes plungers and cylinders) is to be
hoisted and therefore not a violation, and the grievance is denied. [UX #2,
page 2.]
The
Business Manager responded by letter the same day stating:
I
received your letter with a copy of [the then-Director, Labor Relations] letter
of February 1995. I hope you have access to a copy of the IUEC's response.2
It so, that should clarify this issue. There is an agreement that was made
between the IUEC and Otis Elevator regarding the use of a crane and it was made
well after [the then-Director, Labor Relations] letter.
Not
only was it agreed to by both parties to remove the cover of the casing, use a
crane to set the jack in the ground for safety and prevent damage to the PVC
Liner by resting it the casing; but it was also agreed that when the
construction team was assigned to the job, rigging would be set up and the jack
would be removed from the ground, the casing cut and the jack lowered back into
the ground.
Both
parts of the above agreement must remain in effect in order for the complete
agreement to be honored by either party. As always, Local 4 stands ready to
assist you on this or any other important matter. [UX #4.)
On May 7, 2004, the Branch Manager
wrote the Business Manager as follows:
I'm
writing in response to your letter dated May 5th. A search of the Otis'
records did not reveal a response by the IUEC to the letter from [the
then-Director, Labor Relations} that I previously sent you. [The then-Director,
Labor Relations]'s letter summarized the disposition of two grievances filed by
Local 4 over the use of cranes to hoist and lower plungers and cylinders that
were heard by the NAC. Otis denied both grievances. I do not believe that Local
4 or the IUEC brought either of those grievances to arbitration, and,
accordingly, Otis's dispositions stand.3 If you have any additional
information or documents concerning these grievances, please send them to me so
that we consider them in relation to this issue.
Also,
there is no agreement between Local 4 and Otis as you described in your May 5th
letter. Otis's long-standing practice in Local 4 regarding the installation of
jacks does not include removing the entire jack from the ground after it has
been placed in the wellhole. There is nothing in the Otis Elevator Company
Agreement that requires that to occur. However, if you have documentation or
other proof of the agreement to which you refer, please send it to me.
The
installation of jacks in Local 4's jurisdiction will continue to proceed according
to Otis's long-standing practice. Accordingly, jacks will not be removed from
the ground after it has been placed in the wellhole. If you have any additional
questions or wish to discuss this matter further, please feel free to contact
me... [UX #3.]
____________________
2 Arbitrator's note: On cross examination, the Business
Manager said that he believed at the time there had been a written response but
now acknowledges he may have been incorrect.
3 Arbitrator's note: The Union stipulated that
grievance #s 280 and 281 had not been taken to arbitration.
On May 10, 2004, the
Business Manager wrote the Branch Manager reiterating its position with respect
to the alleged agreement as follows:
I
received your fax where you state that there is no agreement between Local 4
and Otis as I described in my May 5th letter. Unfortunately, you are
misinformed. Local 4 will continue to direct its membership to abide by The
Otis Elevator Company Agreement.
Not
only was it agreed to by both parties to remove the cover of the casing, use a
crane to set the cylinder in the ground for safety and prevent damage to the
PVC Liner by resting it on the casing; but it was also agreed that when the
construction team was assigned to the job, rigging would be set up and the
cylinder would be removed from the ground, the casing cut and the cylinder
lowered back into the ground. [UX #5.]
Subsequently
the Business Manager spoke with the Labor Relations Manager who sent the
following May 20, 2004-letter:
I am
writing to follow-up on our conversation on Monday May 17th, and your
May 10th letter to [the Branch Manager], both regarding the hoisting
of plungers and cylinders. As we discussed, it is Otis's position that under Article
IV, par. 5 of the Otis Elevator Company Agreement plungers and cylinders may be
hoisted and lowered into the wellhole with a crane.
As I
understand Local 4's position on this matter, Local 4 alleges that the hoisting
and lowering of a plunger and cylinder is not permissible under Article IV,
par. 5. Moreover, in your May 5th letter to [the Branch Manager],
you contended that an agreement was reached between Local 4 and Otis in which
the parties agreed that after the plunger and cylinder was placed in the wellhole
by a crane and the crew was assigned to the job, rigging would be set up and
the plunger and cylinder would be removed from the ground and placed back in
the ground. In [the Branch Manager's] reply to you, dated May 7th,
Otis asked for any documentation that supported that alleged agreement and
documents related to the grievances regarding plungers and cylinders described
in [the then-Director, Labor Relations]'s letter (that letter is described in more
detail below.) Although you have reiterated your allegation that there was some
agreement on this issue, you have not presented any evidence to support your
allegation, nor have you responded to Otis' request for information.
I
have researched this issue and spoke to members of Otis management and other
members of the labor relations department. I have not discovered any evidence
of the agreement you contend exists between Local 4 and Otis. However, my
research did reveal [the then-Director, Labor Relations]'s February 16, 1995
letter (which [the Branch Manager] sent to you previously) that summarized the
disposition of two grievances filed by Local 4 over the use of cranes to hoist
and lower plungers and cylinders that were heard by the NAC. Otis denied both
grievances. It does not appear that Local 4 or the IUEC brought either of those
grievances to arbitration, and, accordingly, Otis's dispositions stand. In those
dispositions, there were no conditions placed on Otis' rights under the
Agreement to use cranes to hoist or lower plungers and cylinders.
Moreover,
Otis management has informed me that in Local 4's jurisdiction Otis'
long-standing practice regarding the installation of hydros has not included
completely removing the plunger and cylinder from the wellhole after it was
placed there by a crane. However, the practice does include picking the plunger
and cylinder to a sufficient height so that the casing can be cut. In the
absence of any evidence of an agreement with Local 4 to the contrary, Otis will
continue to follow its long-standing practice regarding hydro installations.
Accordingly, if you have a copy of the agreement that you have referenced in
your letters (or any other evidence up the agreement), please send it to me.
I
hope that Local 4 chooses to resolve this issue by the contractually-mandated
procedures. However, if Local 4 chooses to continue to disregard the grievance
procedure in the Agreement and direct Otis employees to disregard the
directions of their supervisors, Otis will pursue all appropriate avenues to
rectify Local 4's improper and unlawful conduct. [UX #6. Emphasis original.]
On May 26, 2004, the
Labor Relations Manager sent the Business Manager the following letter via fax:
The
purpose of this notice is to demand that the IUEC Local 4 immediately cease the
work stoppage against Otis Elevator Company in which its employees are
currently engaged. This work stoppage is illegal and in violation of Article
XIV, the No-Strike clause ...
[CX
#8.]
In
his response the same day the Business Manager explained the Union's position
with respect to the Exeter, NH, Mashpee, MA and Falmouth, ME disputed jobs, i.e.,
that the Company had asked construction teams to work outside the Otis Elevator
Company Agreement and they declined to do so. He concluded as follows:
Your
supervisors continuing to instruct Local 4 members to violate The Otis Elevator
Company Agreement and their refusal to do so does not constitute a work
stoppage. Local 4 is filing grievances on these matters and reminds you that
there is a ULP (case #1-CA-41777) filed against Otis Elevator regarding layoff
of two Local 4 members for their refusal to violate The Otis Elevator Company
Agreement.
The
Local 4 members involved in these issues can continue to work around the work
in dispute as stated in Article IV Par 11 a. The Local 4 crews have work at
their previous jobsites. Do not, layoff, terminate or otherwise cause harm to
Local 4 members due to their refusal to violate The Otis Elevator Company
Agreement. We will file a additional ULP's if needed and seek alternate legal
remedies. [CX 9.]
On
May 27, 2004, in a letter to the Business Manager the Labor Relations Manager
reiterated his demand that the Union immediately cease the work stoppage and
recounted the Company's previously stated positions regarding the Union's obligation
to file grievances, the effect of the withdrawal of the prior grievances, the practice
of using the crane since then and the Company's interpretation of the Agreement
permitting this work. (CX #10.)
The
parties introduced testimony and exhibits concerning the referenced 1994 grievances,
the alleged agreement, past practices and bargaining history. Those points will
be briefly summarized below.
The 1994 Grievances
The Union contends
it had agreed to accommodate the Company's need to safely store the longer,
single-piece jacks by using a crane to lower them through the top of the
structure into the above-ground hoistways. When the Company expanded that use
of cranes to include placing the jacks in the wellholes grievance #s 280 and 281
were filed. (CX #s 4 a and 4 b.) The grievances were appealed to the National Arbitration
Committee (NAC), where they were denied by the Company.
The
Company maintains that following the February 16, 1995-meeting of the NAC, the then-Assistant to the IUEC General
President withdrew both grievances. This action is summarized in a March 7, 1995-memorandum
from the then-Director, Labor Relations to the Regional General Managers, which
reads in pertinent part:
The
IUEC's Assistant to the General President [W.B.] has responded to my Step II answers
of February 16, 1995 by seeking arbitration for ten of them.
He
withdrew three grievances which were on two topics. One they dropped was #280
and #281 (Boston) where they claimed we could not put a
plunger/cylinder in the hole or put them in the hole when there was no building.
(We thought they would fight us!)... [CX #6.]
The
Company argues that Article XV, Par. 7, which provides that the failure
"to appeal the grievance within the time limits described above without
mutual agreement shall be considered an abandonment of the grievance,"
bars Local 4's effort to relitigate the use of cranes to put jacks in
wellholes.
The Union notes
that while the 1994 grievances protested use of the crane to "install"
plunges and cylinders into casings, the Construction Superintendent in Local
4's jurisdiction testified that on such jobs he instructed the cranes "to
put the plungers and cylinders into the casings." (Tr. II at 150.) The
Union contends this is different from actually performing the installation. In
responding to the grievances, therefore, the then-Director, Labor Relations did
not claim that the Company had the right to use a crane to "install"
the plungers and cylinders.
The Union explained
that at the time the then-Assistant to the General President allegedly withdrew
the grievances, without prior notice to Local 4, he knew that Local 4's Business
Manager was intending to run against him in the upcoming elections. In any event,
it is well established that a union's earlier failure to grieve violations of
clear contract language is not proof of acquiescence to the employer's practice
and does not bar subsequent grievances once the union has given notice that
further noncompliance will not be tolerated. Here, in May 2004 at the Union
informed Otis it would no longer permit use of cranes in violation of Article
IV.
The
Company contends that after the grievances were withdrawn no changes were made
to its method of installing holed jacks and thousands have been installed in Local
4's jurisdiction since. The Local 4 Business Manager who filed the 1994 grievances
later was elected Assistant to the General President and subsequently General
President, but never again raised the issue of the Company using cranes in the protested
manner. And, the Union's contention regarding the political dispute merely confirms
that the withdrawal of the grievances was totally within the IUEC's control.
The Alleged Agreement - Disputed Work
The
Business Manager testified about the agreement he described in his May 5, 2004-letter to
the Branch Manager, quoted above on page 7. He said that it was his understanding
that when a crane was used to place a jack in a wellhole, when the Elevator
Constructors came to finish the job they would remove the jack from the wellhole,
cut the casing, then install the jack in the wellhole.
On
cross examination, the Business Manager testified that sometime after the 1995
letter, when he had just been elected as recording secretary, "it came
back to the Local that it would be allowed that the jack would be placed in the
hole and removed afterwards if they had been placed in the hole with a
crane." (Tr. II at 96.) He said that the Regional Director of the IUEC,
the Local 4 Manager and Representative, Otis' Regional person and the
Construction Manager or Office Manager at the time were involved. He
acknowledged that information provided in the affidavit submitted to the Court
regarding who made the agreement and when was incorrect.
The
Business Manager testified that the objectionable Company method is to use a
crane to put the jack in the wellhole and leave it there. Instead of pulling
the jack out to cut the casing they would lift it up just a little bit so they
don't have to install the rigging to hoist the jack out of the way. He said
that the work lost to the bargaining unit if the Company's method is followed
includes moving and setting up rigging equipment on the top level, pulling the
jack entirely out of the wellhole and setting it in the corner of the pit, and
placing it back in the wellhole.
The
Business Manager identified two letters from management officials at Stanley
Elevator Company, Inc. and Kone Elevators Escalator, two companies with IUEC
contracts in Local 4's area. He was familiar with the circumstances leading to
both letters. The June 25, 2002 letter from Kone states:
As
per my discussion with Business Representative [M. L.] regarding the Wilkes
Passage job in Boston. We will continue to follow the agreement of removing
and reinstalling jacks when they are placed in the ground with the use of a
crane. For safety reasons or damage to equipment only, we will place them in
the ground.
Any
other jacks that are too long to move through the building will be placed in
the hoistway with a crane and installed by Local 4 members. We will continue to
bid our jobs using the most economical procedure including the installation of
multi piece jacks as well as single piece jacks. [UX 7b.]
The December 9, 2003
letter from Stanley states:
This
letter is to confirm our mutual understanding on the use of cranes to hoist
single section cylinders in all areas under the jurisdiction of Local #4 including
Massachusetts, New Hampshire and Maine. Stanley Elevator agrees to notify Local #4 via fax
prior to the use of a crane to hoist single section cylinders within the
building structure. The cylinders will either be stood in the hoistway or
temporarily lowered into the earth casing. At the time of installation the
cylinder will be hoisted by chain fall so the earth casing can be cut below pit
floor then lowered into the earth casing for final placement.
This
understanding shall stand until such time as a more formal agreement is reached
but in no way should place Stanley Elevator at a competitive disadvantage when
installing single section cylinders. [UX 7a.]
Company
witnesses uniformly denied that such an agreement was ever made at Otis.
Past Practice
The
Business Manager testified that prior to May 2004 he was not aware of any hydraulic
jack installation being performed in Local 4's jurisdiction using only a crane and
without the Elevator Constructor pulling the jack back out of the ground. He described
a McLean Hospital job he had worked on in the mid to late 80s for
another company. The Business Representative agreed, due to unusual circumstances,
to allow use of a crane to lift a 50 foot jack from outside the building, lower
it through a hole in the roof and set it in the hoistway. Once the jack landed
in the hoistway they released the rigging and the crane left. On cross
examination he agreed that he and his helper had used to hoisting and rigging
skills learned through the NEIEP educational program, that he oversaw the
entire process of hoisting and installing the jack, and that the crane didn't
do anything without his direction.
The
Business Representative for Local 41, covering western Massachusetts Vermont
and the two new Hampshire counties not in Local 4, who has held that position since
October 1998, testified that Otis is the only employer in his area that uses a
one-piece jack installed with a crane. He explained that, as in Local 4, IUEC
members meet the truck at the site to unload. If it is a holed jack the crane
is there and the Elevator Constructors rig it to the crane, hoist it, cut the
top off the casing, drop it down into the wellhole, and store it there until
the structure is built. When the crew returns to start the job they go to the top
of the hoistway, hang the rigging, hoist the entire jack off the ground, put it
to the side, cut the casing, re-hoist the jack, and set it back down into the wellhole.
He introduced a series of photographs he took of jobs in which Local 41 members
removed the jacks from the ground after they had been placed there by a crane
and testified about his conversations with Otis' Construction Superintendent concerning
his taking of the photographs and the work involved. (UX #8.)
The
IUEC Regional Director of the region encompassing New England, New York and
one local in Pittsburgh, introduced the results of a survey he undertook in preparation
for this arbitration hearing of practices in the locals he services. The responses
for Local #s 14, 27, 35, 41, 62, 91, 138 and 129 indicated that when a hydraulic
plunger and cylinder have been set in a wellhole by a crane it is removed from the
wellhole and reinstalled. (UX #10.)
Employer
witnesses testified that Otis has followed an established practice of using
cranes to hoist jacks and lower them into wellholes with Elevator Constructors supervising
the cranes and performing the hoisting necessary to cut the casing with the jacks
lifted a few feet above the casing. Under certain circumstances it is necessary
for the Elevator Constructors to remove the jack from the wellhole, e.g., to
check for damage or where the tolerances are too tight to cut the casing level
to the floor without risking damage to the PVC liner. Previously it had also
been necessary to remove the plunger to remove the shipping rings or plumb the
cylinder with a Spider Bob.
The Union argues
that no practice is enforceable if it conflicts with the language of the
contract and Article IV directly and unambiguously limits the use of cranes to hoisting
and lowering heavy material outside of the structure. The heavy material
that can be hoisted by a crane up the hoistway does not include plungers and
cylinders.
Bargaining History
The January 1, 1967 to March 23, 1972-Standard
Agreement provided in Article IV-Work Jurisdiction:
Par.
5. Where heavy material is to be hoisted or lowered outside of the structure, a
derrick can be used under the supervision of Elevator Constructors in the
employ of the Manufacturer. Heavy material is confined to machines, controllers
and generators. All other material is to the hoisted or lowered by Elevator
Constructors without the use of derricks. [UX #11.]
The March 24, 1972 to July 8, 1977 Standard
Agreement provided in Article IV-Work Jurisdiction:
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 Elevator Constructors in the employ of the Employer. Heavy
material under subparagraph (a) is confined to machines, controllers, generators,
trusses, or sections of trusses, plungers and cylinders. (Where multiple sections
of cylinders and plungers are used, they shall be connected in the field by Elevator
Constructors.)
(b) Where conditions are such that the
following heavy material can be hoisted up the hoistway, it shall be hoisted by
the Elevator Constructors. Where conditions are such that the following heavy material
cannot be hoisted up the hoistway, it can be hoisted with a crane under the
supervision of Elevator Constructors. Heavy material under subparagraph (b) is
confined to beams, sheaves, and bundles of rails.
(c) The above heavy material in
subparagraphs (a) and (b) shall be hoisted separately with the exception of
plungers and cylinders which may be hoisted together.
(d) All other material is to be hoisted or
lowered by Elevator Constructors without the use of derrick or crane. [UX #13.]
On
March 20, 2002, during negotiations for the instant collective bargaining agreement,
the Company made the following proposal to change Article IV, paragraph 5 (a) -
(d)
ARTICLE IV
Work Jurisdiction
Par.
5 (a) - (d)
(a) Where any heavy material is to be
hoisted or lowered outside of the structure, a derrick or crane can be used
under the supervision of Elevator Constructors in the employ of the Company.
Heavy material under this subparagraph (a) is confined to machines,
controllers; generators, trusses, or sections of trusses, plungers and cylinders,
may include any equipment or material coming under the jurisdiction of the Elevator
Constructor. (Where multiple sections of cylinders and plungers are used, they
shall be connected in the field by Elevator constructors.)
(b) Where conditions are such that the
following heavy material can be hoisted up the hoistway, it shall be hoisted by
the Elevator Constructors. Where conditions are such that the following heavy
material cannot be hoisted up the hoistway, it can be hoisted with a crane or
material hoist under the supervision of Elevator Constructors. Heavy material
under subparagraph (b) is confined to beams, sheaves, bundles of rails and
preassembled landing door entrances.
(c) The above heavy material in subparagraph
(a) and (b) shall be hoisted separately with the exception of plungers and
cylinders, rails, beams, preassembled landing door entrances and where
conditions warrant machines with beams, which may be hoisted together.
(d) All other material is to be hoisted or
lowered by Elevator Constructors without the use of derrick or crane [UX #14.]
Those
proposed changes were not agreed to by the Union and the language in the current July 9, 2002-July 8,
2007-Otis-IUEC agreement remains unchanged from that contained in the prior
agreement.
The Union argues
that the Company is trying to obtain through arbitration what it could not obtain
at the bargaining table.
The
Company contends that it was trying to negotiate greater flexibility in material
handling.
RELEVANT
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT
ARTICLE II
Recognition Clause
Par.
1. The Union claims and the Employer
acknowledges and agrees that the Union has supplied proof that a majority of its Elevator Constructor
Mechanics, Elevator Constructor Helpers and Elevator Constructor Apprentices
have authorized the Union to represent them in collective bargaining with the
Employer.
The
Employer recognizes the union as the exclusive Section 9(a) bargaining
representative for all Elevator Constructor Mechanics and 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.
Par.
2
(a) The handling and unloading of all the
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 forklift or truck
mounted swing boom may be used by the Elevator Constructors. A derrick, crane
or material hoist may 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.
(b) The erecting and assembling of all
elevator equipment to wit: electric, hydraulic, steam, belt, dumb waiters,
residence elevators, parking garage elevators (such as Bowser, Pigeon Hole, or
similar types of elevators), shuttles, compressed air and handpower, automatic
people movers, monorails, airport shuttles and like-named devices used in the transportation
of people for short distances of travel (less than 5 miles), as well as
vertical reciprocating conveyor systems
Par.
5.
(a) Where heavy material is to be hoisted or
lowered outside of the structure, a derrick, crane or material hoist can be
used under the supervision of 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 and cylinders. (Where
multiple sections of cylinders and plungers are used, they shall be connected
in the field by Elevator Constructors. Exception: Otis's multiple sections of
cylinders may be connected either in the field or factory up to thirty-eight
(38) feet in length; where multiple sections of plungers are used, they shall
be connected in the field by Elevator Constructors.) In addition to the
foregoing, the company shall have the right to utilize derricks, cranes or a
material hoist to hoist or lower tools of the trade, gang boxes, welders, air
and gas tanks, cutting torches, material handling equipment and safety
equipment.
(b) Where conditions are such that the
following heavy material can be hoisted up the hoistway, it shall be hoisted by
the Elevator Constructors. Where conditions are such that the following heavy material
cannot be hoisted up the hoistway, it can be hoisted with a crane or material
hoist under the supervision of Elevator Constructors. Heavy material under
subparagraph (b) is confined to beams, sheaves, bundles of rails and
preassembled landing door entrances.
(c) The above heavy material in
subparagraphs (a) and (b) shall be hoisted separately with the exception of
plungers and cylinders, rails, beams, preassembled landing door entrances and
where conditions warrant machines with beams, which may be hoisted together.
(d) All other material is to be hoisted or
lowered by Elevator Constructors without the use of derrick or crane.
Par.
9. No restriction shall be imposed as
to methods tools or equipment used.
Par.
11.
(a) All differences and disputes concerning
Article IV or Article IV (A) shall be settled in accordance with the grievance
procedures in Article XV.
(b) While any question or dispute pertaining
to Article IV or Article IV (A) is being processed the Company, where possible,
shall assign the employees work other than the work in dispute. Where the work
has progressed to a point where it is not possible to perform work other than the
work in dispute, then the employee shall perform the disputed work pending
final resolution as provided herein.
ARTICLE IV (A)
Systems, Modular and Industrial Structures
ARTICLE XV
Arbitration
Par.
1. Any difference or dispute
regarding the application and construction of this Agreement, shall be referred
to as a "grievance" and shall be resolved under the following
procedure. Both parties commit to making an earnest effort to resolve the
differences in accordance with the procedure outlined below:
Par.
2. Oral Step....
Par.
3. Written Step One. ...
Par.
4. Written Step Two. If the grievance
is appealed it shall be placed on the agenda of a scheduled meeting of the
National Arbitration Committee. The Employer shall be represented by the
Director, Labor Relations or his designee and a panel of two (2) additional
Employer Representatives. The Union shall be represented by the General President or his
designee and two (2) additional representatives.
The
National Arbitration Committee shall meet once per calendar quarter. Each party
shall submit an agenda not less than seven (7) working days prior to the meeting.
The Director
Labor Relations or his designee (or the General President, IUEC or his
designee) shall render a disposition of the grievance in writing at the
National Arbitration Committee Meeting. If the grievance disposition is
accepted, it shall be final and binding on all parties.
Par.
5. Impartial Arbitration. If the
grievance is not settled by the National Arbitration Committee, the Union or the
Employer within fifteen (15) working days of the Employer's (or Union's)
disposition as outlined in Paragraph 4, may appeal the grievance to impartial
arbitration. Such appeal shall take the form of a letter to the Director of
Labor Relations (or the General President, IUEC).
Par.
7. It is understood that the
arbitrator does not have the authority to add to, subtract from or modify in
any way the provisions of this Agreement.
Par.
11. Any of the time limits contained
herein may be mutually extended by the representatives of the parties. Failure
to appeal the grievance within the time limits described above without mutual agreement
shall be considered an abandonment of the grievance. If a grievance is not
dispositioned within the above time limits it shall be immediately processed to
the next step of the procedure.
FINDINGS
First
it should be noted that the parties offered a significant amount of testimony regarding
details of the alleged "work stoppage" and the alleged availability
of "work other than the work in dispute" referred to in Article IV
Par. XI. (b). The issues of whether the Union violated Article XIV and whether the Company violated
Article IV Par. 11(b) were not submitted for resolution by the undersigned
arbitrator and, accordingly, will not be discussed.
The
Company's argument that the instant grievance is untimely and also barred by Article
XV, Arbitration, Par. 11 is based upon the Union's failure to timely appeal grievance #s 280 and 281
to arbitration. The difficulty with that argument is that the grievance in this
case alleges the existence of an agreement reached after those grievances
were finally denied by the Company at the NAC level. Thus, resolution of this
case cannot be foreclosed by what went before.
The
instant grievance complains that the Company has "refused to continue the agreement
regarding cylinders placed in the whole or hoistway with a crane." In the Union's view
the work jurisdiction provisions do not permit the use of a crane to lower jacks
into wellholes because crane use to hoist or lower plungers and cylinders is restricted
to "outside the structure." Therefore, a crane could only be used to
lower jacks into the hoistway or wellhole if the Union so-agreed. Without such an
agreement the terms of the collective bargaining agreement apply to the work
and the Union seeks to have its interpretation of those provisions
applied here.
The
Company maintains that cranes may be used in the protested manner under the
terms of Article IV. In their briefs both parties made detailed arguments
construing the language contained in paragraphs 2 and 5 of that Article.
Article
IV, Par. 2 starts with the broad statement that
(a) The handling and unloading of all the
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 forklift or truck
mounted swing boom may be used by the Elevator Constructors.
The Company's Standard
Material Handling Process for Hydraulic Elevators contains the procedure for
unloading holed plunger cylinders from the delivery truck using a truck-mounted
swing boom. (UX 18, pgs. 11-13.) That type of crane work is not in dispute.
The
first mention of Elevator Constructors supervising the use of a crane, impliedly
operated by a crane operator and not an Elevator Constructor, comes in the very
next sentence of Article IV, Par. 2 (a):
A
derrick, crane or material hoist may be used under the supervision of Elevator
Constructors to handle and unload the heavy material described in Paragraph
5(a).
Paragraph 5 (a) and the
limitations placed on such use of cranes will be discussed below.
The Union contends
that the concluding sentences of Article IV, Par. 2 (a) are also applicable
here. That is:
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.
In the Union's view
the arrival of a large one-piece jack for a multi-story building is such an
"unusual condition" requiring the Company to make arrangements with
the Local's Business Representative. The Union contends that the agreement the Company has now
refused to acknowledge or follow was such an arrangement.
The
testimony establishes that one-piece jacks have been in use for decades and
they have gotten larger over time. Testimony also establishes that there have
been numerous discussions between Company and Union officials concerning the
handling of such jacks within Local 4's jurisdiction and elsewhere. The fact
that such discussions took place and questions were resolved satisfactorily
does not mean that an "unusual condition" existed as that term is
used in Article IV, Par. 2 (a). The delivery of one-piece jacks is a normal and
regular occurrence, not an "unusual" condition.
As
to Article IV, Par. 5. (a) the Union argues that a crane can only be used outside
the structure. Since the one-piece jacks are being placed inside the
structure the use of the crane violates the collective bargaining agreement, in
the Union's view.
The
pertinent part of that subparagraph reads:
(a) Where heavy material is to be hoisted or
lowered outside of the structure, a derrick, crane or material hoist can be
used under the supervision of 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 and cylinders.
The Union's
interpretation would find stronger support if the words "hoisted and
lowered" were used rather than "hoisted or lowered." Use
of the conjunctive "and" would limit derrick, crane or material hoist
use to hoisting and lowering moves outside the structure, leaving all hoisting
and lowering moves to be performed inside the structure by Elevator
Constructors using their tools and equipment, notably chain falls.
That
is not, however, the way this provision is written. The use of "or"
means that a derrick, crane or material hoist use may be used under the
supervision of Elevator Constructors where "heavy material is to be
hoisted outside of the structure" or where "heavy material is
to be lowered outside of the structure."
An
interpretation of subparagraph (a) that would permit use of a crane to hoist "machines,
controllers, generators, trusses, or sections of trusses, plungers and cylinders"
outside the structure only for the purpose of lowering them outside the structure
leads to a highly impractical result in that Elevator Constructors would then need
to use their equipment to hoist those machines, controllers, etc. from outside
the structure. The Elevator Constructors rig chain falls to the hoisting beam
inside the hoistway, not outside the structure. The Rigging and Hoisting
booklet from the NEIEP program, 1.6.2, describes use of a portable gantry crane
but the Capacity is limited and use is indicated for installation of
escalators, not elevators. (UX #17, pgs. 20-22.) Further, such an
interpretation is not consistent with other provisions of Article IV.
Hoisting
and lowering of material for the purpose of unloading it from delivery trucks
is covered in Par. 2, discussed above. The hoisting covered by Par. 5 deals
with moving heavy material - machines, controllers, generators, trusses, or
sections of trusses, plungers and cylinders under subparagraph (a) and beams,
sheaves, bundles of rails and preassembled landing door entrances under
subparagraph (b) - into position for the construction/installation to begin.
That is, inside the structure.
This
point is further illustrated by the division in subparagraph (b) between conditions
under which the specified heavy equipment is to be hoisted up the hoistway by
Elevator Constructors and conditions that permit use of a crane or material
hoist. The provisions of Par. 5, read together, contain no indication that the
parties intended to limit use of derricks, cranes and material hoists to lifts
hoisted and lowered outside the structure when this language was first
negotiated in the Standard Agreement many years ago. (See UX #13 quoted above,
pg. 14.)
The
parties offered substantial testimony regarding the practices employed by Otis
and other companies within Local 4's area and elsewhere. The Company argues that
a practice has been established of using cranes to lower single-piece jacks
into wellholes. Given the above interpretation of Article IV, it is not
necessary to make a finding with respect to any alleged practices.
It
should be noted that Article IV, Par. 2 (b) places all the work involved in "erecting
and assembling of all elevator equipment" under the jurisdiction of
Elevator Constructors, Elevator Constructor Helpers and Elevator Constructor
Apprentices. That work includes hoisting jacks and plungers from the wellhole,
as needed, to cut the casing and plumb the cylinders. While testimony indicated
a variety of ways in which the cutting and plumbing can be accomplished, there
is no suggestion on this record that the Company has ever used a crane to hoist
a jack or plunger from a wellhole once it has been placed there.
The Union has cited
three prior arbitration decisions interpreting aspects of the Standard
Agreement work jurisdiction provisions. In National Elevator Industry, Inc.
and IUEC, issued February 22, 1973, Impartial Arbitrator Peter M. Kelliher found a
violation when a crane was used to hoist "more than one machine beam at
the same time outside of the structure with a crane or derrick." Kelliher
found that under the prior 1967-72 contract language beams fell under the
category of "all other material" and not under the category of
"heavy material." Therefore, he held that any
alleged
past practice under the Contract expiring March 23, 1972 ... relating to the
lifting of beams outside of the structure without mutual agreement involved
situations which were clearly contrary to the express language of the Agreement
and had no controlling effect. [Kelliher 1973 at 3-4.]
The successor contract
contained modifications initially proposed by the Employers. He noted that
in
both the prior Contract and the present Contract the general rule was that with
the exceptions noted all other material was to be hoisted by elevator
constructors without the use of a derrick or crane. The clear purpose of this
language as well as the other provisions of Article IV was to retain the Union's
jurisdiction over hoisting with certain well-defined exceptions. Considering
the restrictive conditions that existed prior to the present Contract, it is
unreasonable to believe that this Union would grant a right not only to hoist
several machines, controllers, generators, etc., at one time, but also as
interpreted by an Employer witness, would permit the hoisting of a mixture of
machines, controllers, etc., as long as they were not part of a complete
machine room. The exceptions set forth in Paragraph 5 (c), i.e.; as to plungers
and cylinders which may be hoisted together, does help to explain the general
rule. The testimony is that plungers and cylinders are delivered with the
plunger in the cylinder. The Employers expressed a fear that unless this was so
stated as an exception, a Union Representative might insist that they be
disassembled prior to hoisting. The Arbitrator must find that where the Parties
desired items within a category, such as rails, to be hoisted together, they
clearly so stated by the use of the term "bundles." Where they agreed
on the propriety of hoisting more than one category of materials, such as plungers
and cylinders, in one pick, they specifically so stated. [Kelliher 1973 at 3-4.]
Thus the focus of the
analysis was on what types of materials were covered by the negotiated
exceptions. The Kelliher decision did not turn on the use of the crane
"inside" or "outside" of the structure. Arbitrator
Kelliher's admonition that "the parties are presumed to know the economic
consequences of the language they adopt" still holds true. In intervening
years changes may make a provision less or more valuable to one party or the
other and they may wish to renegotiate certain provisions.
The
other two decisions cited by the Union, a September
28, 2000-decision issued by Arbitrator
David A. Petersen and an August 17,
2003-decision issued by Arbitrator M.
David Vaughn, both involved unsuccessful attempts by Employers to have work
performed at factories that had been reserved for Elevator Constructors by
specific provisions in Article IV.
None
of the three cited decision provide a useful analysis or precedent for interpreting
the language critical to resolution of this case, i.e., the meaning of the phrase
"outside the structure."
For
the above reasons, no violation of Article IV has been established. The grievance
will be denied.
AWARD
The
grievance is denied.
________________________________1/7/05
Elizabeth Neumeier, Arbitrator
