IN THE MATTER OF THE ARBITRATION BETWEEN * GRIEVANCES NOS.: 2-100 AND 32-45**

THYSSENKRUPP ELEVATOR CORPORATION ** GRIEVANCE: WORK JURISDICTION**

AND ** GRIEVANTS: NEAL McCANN AND* SCOTT RUSSELL*

INTERNATIONAL UNION OF *ELEVATOR CONSTRUCTORS, AFL-CIO * ARBITRATOR’S FILE NO: 2016-3453

OPINION AND AWARD

ARBITRATOR: JACK CLARKE

AWARD DATE: MARCH 15, 2017

APPEARANCES FOR THE PARTIES

UNION

Robert Matisoff, Esq., O’Donoghue & O’Donoghue, LLP, Washington, D.C.Charles W. Gilligan, Esq., O’Donoghue & O’Donoghue, LLP, Washington, D.C.Jennifer R. Simon, Esq., O’Donoghue & O’Donoghue, LLP, Washington, D.C.James K. Bender, II, Assistant to the IUEC General PresidentMichael Langer, Regional Director and Safety DirectorDale Coalmer, Regional DirectorRusty Gilbert, Regional DirectorScott Russell, Business Manager, IUEC Local 32Jason Gray, Business Representative, IUEC Local 32

COMPANY

Frank L. Kollman, Esq., Kollman & Saucier, P.A., Timonium, MarylandJ. Patrick Heaney, Vice President of Labor Relations – United StatesJack Upchurch, Director of Labor RelationsGary Hooper, Product Line ManagerWilliam Cromer, NI Operational Manager

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PROCEDURAL HISTORY

ThyssenKrupp Elevator Corporation is hereinafter referred to as “Company”.1 The

International Union of Elevator Constructors, AFL-CIO (IUEC) is hereinafter referred to

as “Union”.

Grievances numbers 2-100 and 32-45 were submitted to the Company in writing

on January 7, 2014 and July 13, 2015, respectively. The Union and the Company

thereafter processed the grievances in accordance with Article XV “Arbitration” of the

Agreement between the National Elevator Bargaining Association (NEBA) and the Union

first effective July 9, 2012 (hereinafter “2012 NEBA Agreement”). Following unsuccessful

attempts at resolving the grievances, they were referred to arbitration in accordance with

Article XV.2 Jack Clarke was selected as Arbitrator from a panel of arbitrators established

in accordance with Article XV.

An arbitration hearing was held at the Hilton Atlanta Airport on October 12 and 13,

2016. During the course of the hearing, the Arbitrator afforded both parties full opportunity

for the presentation of evidence, examination and cross-examination of witnesses, and

oral argument. The Union called the following persons to testify: Scott Russell, Business

Manager, IUEC Local 32; Jason Gray, Business Representative, IUEC Local 32; Dale

1 In its Post-hearing Brief, the Union referred to the Company as “TKE”, a name by whichit is commonly known. When quoting from the Union’s Post-hearing Brief, the Arbitratorhas not changed “TKE”.

2 The grievances raised several issues, most of which the Company and Union resolvedbetween themselves. This arbitration relates to only two unresolved issues, i.e. whetherthe Company violated the 2012 NEBA Agreement by shipping the Endura MRL elevator(1) with wiring between the pump unit and a junction box pre-installed and pre-attachedin the factory and/or (2) with certain brackets pre-installed and pre-attached in the factory.Tr. at 20-21.

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Coalmer, IUEC Regional Director; and Michael Langer, IUEC Regional Director and

Safety Director. The Company called Gary Hooper, Product Line Manager with

responsibilities for the Endura MRL line of hydraulic elevators, and John Patrick (Pat)

Heaney, Vice President of Labor Relations for the United States.

The parties elected to file post-hearing briefs. The Arbitrator received timely,

electronically filed briefs from both parties on January 20, 2017.

No claim was made that either grievance was not arbitrable.3

The parties agreed that the Arbitrator could determine the issues to be resolved in

the instant arbitration after receiving the evidence and arguments presented.4

The parties agreed that if the Arbitrator found for the Union on the merits of the

grievances, he could direct a remedy in general terms and retain jurisdiction of these

grievances to resolve any question that might arise regarding the remedy directed.5

3 Tr. at 21.

4 Tr. at 20-21.

5 Tr. at 66.

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PERTINENT PROVISIONS OF THE 2012 NEBA AGREEMENT

….

ARTICLE IIRecognition Clause

Par. 1. …

The Employer recognizes the Union as the exclusive Section 9(a)bargaining representative for all …. Elevator Constructors in the employof the Employers engaged in 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 inthe interest of the purchaser, the Company and its employees tomaintain the highest degree of operating efficiency and to continuetechnical development to obtain better quality, reliability, and cost of itsproduct provided, however, that this provision is not intended to affectthe work jurisdiction specified in Article IV and other articles of theAgreement.

….

ARTICLE IVWork Jurisdiction

Par. 1. It is agreed by the parties that all work specified in Article IV shall beperformed exclusively by Elevator Constructor Mechanics, ElevatorConstructor Apprentices and Elevator Constructor Assistant Mechanicsin the employ of the Company.

Par. 2.

….

(d) All wiring, conduit, and raceways from main line feeder terminalson the controller to other elevator apparatus and operating circuits.Controllers are not to be shipped from the factory with extended wiringattached thereto.

….

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(t) The setting of hydraulic power units (power units include: motor,pump, drive valve system, internal piping, muffler, internal wiring,controller and tank). Where power units arrive in parts, they shall beassembled at the job site. The wiring and piping to and between multiplehydraulic power units shall be performed at the job site.

Par. 3.(a) Nothing contained in Article IV shall preclude the Company from

preassembling and prefabricating the following:

….

(7) Preassembled plug connectors may be used to interconnect thesolid state components of the elevator systems (solid state to solid stateonly), and to connect any component in and on the car.

When the use of fiber optics is applied to the elevator system,preassembled plugs/coupling devices may be used to maintain theintegrity of the connection(s).

It is understood and agreed that the connecting and/or coupling ofdevices will be done by the Elevator Constructor whether accomplishedby external wiring or preassembled plug connectors as provided in thisParagraph.

….

ARTICLE XVArbitration

….

Par. 7. It is understood that the arbitrator does not have the authority to addto, subtract from or modify in any way the provisions of this Agreement.

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BACKGROUND

The facts that triggered the present grievances, as well as a number of others, are

undisputed.

The Company or its predecessor, Dover Elevator Company, and the Union have

been parties to a series of nation-wide collective bargaining agreements, of which the

2012 NEBA Agreement is the most recent.

The Company is one of the four largest elevator and escalator manufacturing and

servicing companies in the world. In approximately 2014, it began shipping a then newly

designed hydraulic elevator, which it identified as the Endura MRL. “MRL” means

“machine room less”, indicating that the elevator would be installed in a building without

an elevator machine room. As indicated in footnote 2, at the factory, before shipping

Endura MRL elevators, the Company installed and attached wiring between the pump

unit and a junction box and installed and attached certain brackets. As stated in the

Procedural History, the present grievances were filed, alleging, among other things, that

the Company violated Article IV “Work Jurisdiction” of the 2012 NEBA Agreement by

installing the wiring and brackets in the factory and not allowing members of the

bargaining unit to install them in the field.

The parties offered testimonial and documentary evidence regarding, among other

things, the meanings of terms used in the elevator industry; how Article IV has been

applied in other situations; grievance resolutions and settlement agreements reached in

the industry from time to time, specifically including the Settlement Agreement signed by

representatives of the Company and Union on June 29, 2012 and July 2, 2012,

respectively (introduced in evidence as “Union exhibit 14”); and the Company’s reasons

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for shipping Endura MRL elevators as it has. That evidence will be referred to in the

Discussion below to the extent necessary to resolve the present grievances.

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POSITIONS OF THE PARTIES

UNION

The Union contends that the issues to be resolved in this arbitration are:

Issue 1: Did the Company violate the agreement by shipping the EnduraMRL elevator with extended wiring pre-installed and pre-attached in thefactory from the pump unit to a junction box? If so, what shall the remedybe?

Issue 2: Did the Company violate the agreement by shipping the EnduraMRL elevator with brackets pre-installed and pre-attached in the factory onduct? If so, what shall be the remedy?

The Union contends that the Company violated the 2012 NEBA Agreement in both

incidents.

The Union contends:

Article IV, Paragraph 1 of the Agreement provides that work specifiedin the remainder of the Article shall be exclusively performed by ElevatorConstructors. Two provisions in Article IV, Paragraph 2 unambiguouslyprovide the IUEC with exclusive jurisdiction to perform the disputed work.Article IV, Paragraphs 2(d) governs the wiring, raceway, and brackets, andParagraph 2(t) also controls the wiring and raceway.6

The Union contends:

Article IV, Paragraph 2(d) places within the exclusive jurisdiction ofthe Elevator Constructors “All wiring, conduit and raceways from main linefeeder terminals on the controller to other elevator apparatus and operatingcircuits. Controllers are not to be shipped from the factory with extendedwiring attached thereto.”

At hearing, the Union placed into evidence definitions of the technicalterms “conduit,” “raceways,” and “controller” from the NEIEP glossary,developed under the auspices of a joint employer/union program that

6 The Union cites the following for the propositions (1) that an arbitrator must enforce clearand unambiguous language in a collective bargaining agreement without resort to othersources, such as bargaining history and past practice and (2) that technical terms in suchan agreement should be read in the appropriate specialized sense: Elevator Techs, LLC,AAA Case No. 15 200 0020 04 (Eischen 2005) and Elkouri & Elkouri, How ArbitrationWorks, (7th Ed.) Ch. 9.3.A.i.a, b, 9-23 — 9-25.

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provides training to all bargaining unit employees in the industry. TKE didnot offer any other definitions or evidence to cast doubt on the glossary.Additionally, the Union placed into evidence without objection NEIEP‘seducation module on Construction Wiring, which further explains thenecessity and purpose of wiring together different components of theelevator, as well the installation of the raceway to house and protect thewires. Together, these technical terms mean that Elevator Constructorsmust be permitted to install the wiring and all of the metal parts thatcollectively comprise the raceway, including, inter alia, duct, conduit,fittings, and junction boxes.

Paragraph 2(d) places within the Union’s exclusive jurisdiction thewiring and raceway “from … the controller to other elevator apparatus.” Theterms “other” and “apparatus” are not defined in the CBA. However,established principles of contract interpretation dictates that arbitrators startwith the assumption that the parties have used the language in the way thatreasonable persons ordinarily do.”7 The term “other” means “the one orones distinct from that or those first mentioned or implied.”8 And, as anotherarbitrator interpreting the same Agreement has previously noted,“apparatus” is defined by the Oxford University Dictionary as “the equipmentneeded for a particular activity or purpose.”9 Thus, under the plain meaningrule of contract interpretation, Elevator Constructors have exclusivejurisdiction over wiring and raceways from the controller to other elevatorequipment, distinct from the wiring, raceway, or controller. [References toevidence omitted without indication; citations moved to footnotes.]

The Union contends:

The undisputed evidence at hearing established that TKE violatedthe plain language of Paragraph 2(d) in two ways. First, it prevented theElevator Constructors from installing “all wiring and raceway.” Instead, TKEpreinstalled in the factory wiring and raceway—including fittings, conduit,and a junction box—from the tank in the pit of the hoistway to the wall andup a portion of the hoistway itself, to a point at least six inches above thefirst floor. The Elevator Constructors were left to install only the wiring andraceway from the controller on the second floor down to this point near thefirst floor along the hoistway wall. TKE also preattached brackets to piecesof duct in the limited section of raceway that was left for the IUEC to install,thus eating further into the Union’s exclusive jurisdiction over raceway.Second, TKE prevented the Elevator Constructors from installing the wiring

7 Farnsworth, Contracts § 7.10 at 467 (3rd Ed. 1999).

8 Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/other (lastvisited January 16, 2017).

9 Elevator Techs, slip. op. at 18.

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and raceway “to other elevator apparatus,” namely, the tank. TKE took thatwork by preinstalling wiring and raceway from the tank through the junctionbox, leaving the Elevator Constructors with nothing to connect to its wiringand raceway except for more wiring and raceway—the portion alreadypreassembled and pre-installed by TKE at the factory.

In response to the Company, the Union contends:

At hearing TKE claimed it had not violated the Paragraph 2(d)because it did not preinstall wiring or raceway onto the controller itself. Thisincredibly cramped reading of Paragraph 2(d) cannot be squared with theplain language of the Agreement. Critically, TKE’s counsel admitted athearing that “all wiring to the controller is done by the IUEC because that istheir work.” The TKE Endura MRL is designed for wiring to go from the tankto the controller. Sticking a junction box (i.e. a portion of the raceway)between the controller and the tank cannot deprive the Elevator Constructorof this bargaining unit work. Nothing in the Agreement permits the Companyto perform as much of that wiring as it wishes, and then to argue that itcomplies with the Agreement so long as it leaves the final connection “tothe controller” for Elevator Constructors to make in the field.

This argument also fails because it focuses solely on the secondsentence of Paragraph 2(d) while ignoring the first. The second sentence ofParagraph 2(d) prohibits the Company from shipping the controller from thefactory with extended wiring preattached. There is nothing about the secondsentence, however, which negates or lessens the force of the first sentence.Stated another way, TKE’s compliance with half of the requirements ofParagraph 2(d) does nothing to excuse its failure to comply with the otherhalf. Article XV of the CBA prohibits arbitrators from adding to or modifying“in any way the provisions of this Agreement.” TKE’s argument thatParagraph 2(d) should be read only to require compliance with the secondsentence would require the Arbitrator to violate this prohibition by ignoringother terms of the CBA.

TKE also suggested throughout the hearing that the junction box issomehow not a part of the raceway. As set forth above, multiple definitionsin the Glossary, NEIEP ‘s training manual, and hearing testimony belies thatclaim. At hearing the Union witnesses testified that in the unlikely event thejunction box in the Endura MRL is not deemed part of the raceway, the onlyother thing it could be is a component of the controller itself. Indeed, TKE’switness Gary Hooper admitted that the junction box contains an electronicdevice that controls a certain aspect of the backup pump. Thus, if theArbitrator determines the junction box is more than a part of the raceway, itis a part of the controller; and TKE is in violation of the second sentence ofparagraph 2(d) because it has shipped the junction box, a component of thecontroller, “with extended wiring attached thereto.” Alternatively, it has

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made the connection between the tank and the junction box/controller at thefactory, in violation of the first sentence of Paragraph 2(d). [References toevidence omitted without indication.]

The Union contends:

TKE … violated the unambiguous language of Article IV, Paragraph2(t). This violation provides an additional, independent basis to sustain thegrievance.

….

Again, analysis begins with the plain language of the agreement. Thedefinition of “set” is to “put, lay or stand (something) in a specified place orposition.”10 Setting something is clearly distinct from assembling it. As Mr.Russell testified, assemble means “making [the parts] work together. It’sputting them together … to a finished product.” The dictionary is in accord.“Assembled” is the past tense of “assemble,” the common meaning of whichis to “fit together the separate component parts of (a machine or otherobject).”11 This case involves only one power unit, which did arrive in parts:TKE shipped the controller separate from the tank. Thus, the language ofthe CBA is clear and unambiguous: Elevator Constructors must not only setthe controller (in the second floor door jamb) and tank (in the hoistway pit);they must also assemble the power unit, because it arrived in parts. In thiscase, the parts of the power unit to be fit together are the controller and thetank: as the parties agreed at hearing, the elevator cannot function unlessthese parts are attached. Because of the way that TKE has designed theEndura MRL, they must be fit together by means of wiring and raceway.That assembly work is within the exclusive jurisdiction of the ElevatorConstructors. [References to evidence omitted without indication; citationsmoved to footnotes.]

The Union contends:

Any argument by TKE that Paragraph 2(t) only gives ElevatorConstructors exclusive jurisdiction to “set” a single hydraulic power unit, andonly contemplates wiring and piping in the field when there are multiplepower units, must be rejected. Like TKE’s proposed reading of Paragraph2(d), this reading of 2(t) would give force and effect only to the first and lastsentences of the paragraph, and would require the Arbitrator to ignore theagreed-upon language of the sentence in between.

10 Oxford English Dictionary, http://en.oxforddictionaries.com/definition/set.

11 Oxford English Dictionary, http://en.oxforddictionaries.com/definition/assemble (lastvisited January 16, 2017).

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The Union contends:

Article IV, at Paragraph 3, identifies exceptions where the Company maypreassemble or prefabricate elevators or components of an elevator. Evenin Paragraph 3, however, the Agreement sets forth specific work on theprefabricated or preinstalled components that must be performed at thejobsite by Elevator Constructors. Nothing in Paragraph 3, however, permitsEmployers to prefabricate elevator components with extended or externalwiring, or wiring extending beyond the component itself as TKE has done inthis case. To the contrary, at all times relevant to this case Paragraph3(a)(7) has provided that “the connecting and/or coupling of devices will bedone by the Elevator Constructor whether accomplished by external wiringor preassembled plug connectors as provided by this paragraph.” In theUnion’s view Paragraph 3(a)(7) adds additional support to the its position inthis case: The clear language of this provision states a general rule that thework of connecting any elevator components, whether by installing thewiring between them or by using the preassembled plug connector, mustbe performed by Elevator Constructors in the field. That would includeconnecting the tank and the controller; it would also include connecting thetank and the junction box, to the extent the junction box is viewed assomething more than part of the raceway and as a “device” in its own right.

During negotiations for the 1997 Agreement, however, themultiemployer bargaining group including TKE’s predecessor DoverElevator proposed a significant change in the first sentence of Paragraph3(a)(7) which would have weakened this language, perhaps fatally. Underthe Employers’ proposal, the language would have changed from“Preassembled plug connectors may be used to interconnect solid statecomponents of the elevator systems (solid state to solid state only).” to“Preassembled plug connectors and/or extended wiring may be used tointerconnect any components in the elevator system.” IUEC RegionalDirector Dale Coalmer was present during the 1997 negotiations andtestified that the Employers sought to expand the use of preassembled plugconnectors as well as to fabricate any and all elevator components at thefactory with wiring already installed and extending beyond the component.The Union ultimately accepted a proposal that expanded use of thepreassembled plug connectors in some additional situations, but rejectedthe proposal to allow factory installation of extended wiring betweenelevator components. Thus, the Companies failed to obtain in negotiationsthe right to preinstall in the factory a power unit with external wiring alreadyattached, effectively prewired to tie in to other elevator apparatus. Ascountless arbitrators have observed, a party may not obtain througharbitration what it could not acquire through negotiation. [References toevidence omitted without indication.]

Anticipating an argument of the Company, the Union contends:

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The Union anticipates that TKE will rely heavily on the 2010 and 2012Synergy settlements in an attempt to overcome the weight of the evidencein the Union’s favor set forth above. Specifically, TKE may argue that theSynergy settlements prove that as a universal matter, factory installedwiring from an elevator motor to a junction box is not “extended wiring” andtherefore TKE does not violate the Agreement by preinstalling this wiringand the raceway to protect it. This argument cannot withstand scrutiny forseveral reasons: first, the settlement agreement is limited by its terms tocertain grievances over specific Synergy models; second, the terms of theagreements reflect longstanding practice with respect to traction elevatorsonly, while the practice with respect to hydraulic elevators is quite different;and third, even if the Synergy settlement resolved the Article IV, Paragraph2(d) issue, which it does not, it is utterly irrelevant to the Company’s violationof Paragraph 2(t).12 … [T]he Synergy settlements are neither unqualifiednor unconditional. Rather, like most of the other settlement agreements inevidence in this case, they are explicitly limited to specific grievances (setforth in the settlements by number) over specific models of the Synergytraction elevator. The fact that the parties chose to put in such clear, limitinglanguage must be given effect by the Arbitrator, because when thesesophisticated, experienced bargaining parties wish to reach a broaderagreement they know how to do so. The NEBA Agreement as well as someof the JIC decisions provide clear examples of agreements which are notlimited to any specific employer, grievance number, or model of elevator.The Synergy settlements, by contrast, contain no language suggesting thattheir terms will apply more broadly than the specific models of elevator towhich they are addressed. Equally important, the Synergy settlements andthe current case do not present factually similar disputes on the same issue.The Synergy settlements not only involve different models of elevator thenthe Endura MRL, they involve an entirely different type of elevator—atraction elevator—which is designed, powered and run in a totally differentway. (Tr. 43-44.) They address a variety of issues that have nothing to dowith this case, including dead-end hitch places, isolation assemblies, anddeflector sheaves. And, they do not even define the “extended wiring” whichthe grievance allegedly prohibits.

Tellingly, TKE relies most heavily on the elements of the Synergysettlements which involve attaching components to the same bedplate—asteel structure which traditionally holds the brake, the machine, and themotor on traction elevators together in one unit. But there is no bedplate ona hydraulic elevator. Indeed, the wiring and raceway between the powerunit and junction box at issue in this case is not confined to anythingremotely similar to a bedplate. To the contrary, it extends away from thetank and up the hoistway wall. Because the Synergy disputes are so utterlydifferent on their facts, they have no relevance to the issues in this case.

12 Elkouri, (7th Ed.), Ch. 9.3.A.iii, 9-31.

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The evidence presented at hearing regarding the vastly different pastpractices for installing traction and hydraulic elevators further emphasizesthe irrelevance of the Synergy settlements to this case. Notwithstanding anysuggestion by TKE to the contrary, the portion of the Synergy settlementrelated to wiring between the motor and the junction box on the bedplatedoes not appear to have resolved any major discrepancies in this practice.[References to evidence omitted without indication; citation moved tofootnote.]

The Union contends:

[T]he JIC decisions and settlement agreements presented at hearingindicate a long tradition in which the Companies have not been allowed topreinstall at the factory wiring which extends out of elevator componentsand can be used to make connections with other components.

In addition to the Endura MRL, the only hydraulic elevator aboutwhich evidence was provided at hearing was the Endura A & B, the legacyproduct that preceded the Endura MRL. Gary Hooper testified that the vastmajority of these units were shipped from the factory with the controllerpremounted directly onto the tank, thus obviating the issues underParagraphs 2(d) or 2(t) in this case. In rare instances—less than 200 unitsper year out of the 5,000 TKE shipped—the controller was shipped from thefactory separate from the tank. In some of those rare cases, the ElevatorConstructors wired the controller from the wall directly to the tank; thejunction box had been preinstalled at the factory inside the tank itself. In theremainder of these rare cases, the junction box was bolted to the front ofthe tank and prewired thereto.

While the evidence may be somewhat inconclusive regarding TKE’shydraulic elevators, one thing is clear: there is no evidence in the recordthat the Union has ever agreed to cede its negotiated bargaining unit workto allow anything like the wiring and raceway work in this case to bepreinstalled in the factory….[T]his case involves the Company’s decision topre-install at the factory a sufficient amount of wiring and raceway to go fromthe tank in the pit, over to the side wall of the hoistway, and part way up,ending in a factory installed junction box to be hung on the hoistway wall atleast six inches above the first floor. This is both a radical departure fromprevious practices and a clear violation of the CBA. [References to evidenceomitted without indication.]

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The Union contends that Article II, Paragraph 2 of the 2012 NEBA Agreement

protects the Elevator Constructors’ work jurisdiction from erosion as a result of the

Company’s technical developments. The Union contends:

The Company explained that it chose to install wiring and raceway in thefactory because the factory environment was “a cleaner environment” thanthe pit of the hoistway, that it might have better lighting for installation, andprewiring and preinstallation could help maintain the water- resistantproperties of the tank and the raceway from the pit to the first floor of thehoistway. With respect to the preinstallation of the brackets, part of the“raceway” work Elevator Constructors are to perform under Article IV, Par.2(d), TKE offered only the justification that it was “more efficient” to performthe work in the factory. However, testimony from both Union and Companywitnesses clearly established that Elevator Constructors routinely install,repair, and maintain hydraulic elevators in the pit of the hoistway; installliquid-tight and waterproof raceway; perform work on various elevatorcomponents without compromising their water-resistant or waterproofproperties, and make minute and precise measurements to properly installbrackets to duct in the field. Moreover, as set forth throughout, this work iswithin the express, exclusive jurisdiction of the Union under Article IV Par.2(d) and (t). Under these circumstances, the Employer may not stripbargaining unit work from the Union.

In Article II, Paragraph 2, the Union recognizes that TKE has theresponsibility “to maintain the highest degree of operating efficiency and tocontinue technical development to obtain better quality, reliability, and costof its product. ...” At the same time, however, Paragraph 2 states the parties’clear, mutual understanding the “this provision is not intended to affect thework jurisdiction specified in Article IV.” There is no specific “ManagementRights” clause in the national agreement; and whatever inherent right theCompany might otherwise be deemed to possess to continue technicaldevelopment is limited by the language it agreed to in Article II, Par. 2 thatthe union’s work jurisdiction is not to be affected.13 [References to evidenceomitted without indication; citations moved to footnote.]

13 Kone, Inc., AAA Case No. 33 300 00336 02, p. 19 (Vaughn 2003); National ElevatorIndustry, Inc., p. 8 (Rock, 1974).

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The Union contends that any argument that the lost work is de minimis must be

rejected.14

The Union requests the Arbitrator grant Grievances numbers 2-100 and 32-45 and

direct the Company to cease and desist from shipping the Endura MRL elevator with

extended wiring pre-installed and pre-attached in the factory from the tank to a junction

box, and with brackets pre-installed and pre-attached in the factory on duct. The Union

further requests that the Arbitrator remand the case to the parties for attempted resolution

of the specifics of the remedy, including the calculation of back pay, while retaining

jurisdiction to handle any remedial issues that cannot be resolved or that may arise in the

future.

COMPANY

The Company contends:

Absent a specific Article IV restriction, signatory employers have thediscretion to perform any non-bargaining unit work elsewhere (such as itsfactory).

Article IV is not as broad as the IUEC would like or claims it to be,and the clear language frequently does not support the Union’s broadinterpretation, which is the case here. Little wonder that the IUEC relies onsettlements, past practices, dictionaries, apprenticeship materials, and acontract proposal made and withdrawn decades ago to make its case, butnot the explicit language of Article IV itself.

… The initial grievance alleged twenty-two (22) separate Article IVviolations, all but two (2) of which were resolved prior to arbitration….

When the parties resolve twenty (20) items and the Union submitsthe remaining two (2) for arbitration, the only question to be decided iswhether Article IV places those items in the exclusive jurisdiction of theIUEC under Article IV. Dictionaries, old contract notes discovered the night

14 Doctors Hosp. of Pinole, 106 LA 1200, 1208 (Riker, 1996) (quoting Foot Mineral Co.,AAA Case No. 36-6 (Jaffe, 1961)); United Parcel Svc., 130 LA 1373, 1378 (Hoffman,2012); National Elevator Industry, Inc. (Rock, 1974).

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before the arbitration, and other distractions and red herrings should not benecessary. Does the language of Article IV include the disputed work withinthe exclusive jurisdiction of the IUEC? If not, the work may be done in thefactory or elsewhere by non-bargaining unit workers. In this case, it is thelatter. There are no provisions in Article IV requiring connections from apower unit or machine to a junction box to be done in the field, and thereare no provisions relating to or limiting the manufacture of duct or bracketsor the connection of brackets to duct.

All past practice is consistent with the Company’s application ofArticle IV. ThyssenKrupp Elevator Corporation manufactures three (3)Endura hydraulic products. The elevator at issue here is the MRL, amachine-room-less hydraulic elevator with a controller that is separatelyshipped and set in the field by IUEC mechanics. The two other Enduralegacy hydraulic products, A and B, are shipped with the controller wired tothe tank and mounted on the tank by factory personnel (Company Exh. 1).In some instances, the controller of the A and B is shipped separately dueto job site conditions; in that case, the machine has a junction box attachedto the tank, wired and mounted at the factory. The IUEC connects thecontroller to the junction box in the field in all cases.

Because the IUEC raises no Article IV issues in connection with theCompany’s legacy products where the junction box or controller is mountedon the tank (or in the case of all the Company’s traction elevators, thejunction box is mounted on the machine bed plate), it is reasonable toconclude that the Endura MRL is being questioned under Article IV solelybecause the junction box is not mounted on the tank as has traditionallybeen the case, by not only TKE but all hydraulic elevator manufacturers.The question, then, becomes does Article IV prohibit the design itselfbecause the junction box is shipped with longer conduit to permit it to bemounted in the shaft to the wall raised above the level of potential damagingwater infiltration by the IUEC rather than by the factory?

The IUEC needs to show that (1) by relocating the junction box fromthe tank, TKE has triggered Article IV, or (2) in the alternative, that anyfactory conduit to a junction box – whether mounted on the tank or not –violates Article IV. Neither can be done.

The Company contends:

Article IV does not prevent TKE from shipping the Endura MRL junction boxand the duct brackets as configured.

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The Company contends:

Applying these [recognized] principles [of contract interpretation], ArbitratorFishgold stated:

Not every elevator component is listed nor does Article IV listevery bit of assembly work that must be done in order tocreate a functioning elevator; nor is its focus in distinguishingwork to be performed in a factory from work to be performedonly at the construction site.15

He rejected the IUEC argument that Article IV, through paragraph 2(b),created plenary exclusive jurisdiction for the IUEC to do the erecting andassembly of all elevator equipment, and that the only exceptions to thisplenary jurisdiction were contained in paragraph 3 of Article IV. Instead, hefound that the Union’s exclusive jurisdiction was not plenary, and thatparticular work must be enumerated in paragraphs 2(d) through 2(v) to bethe exclusive jurisdiction of the Union. Id. at 12. In other words, Article IV,¶¶ 2(d) - 2(v) contain exceptions to the manufacturer’s plenary ability to dowork offsite such as at its factory, not a description of when themanufacturer can do so.

Arbitrator Fishgold held, correctly, that an employer has thediscretion to continue all installation and assembly of components notspecifically listed in Article IV, paragraphs 2 (d) through (v), in its preferredmanner. Id. at 12. If the work tasks claimed by the IUEC are not specificallyidentified in paragraph 2, the Union must show much more than: (1) that thebargaining unit employees did that work some or even most of the time, (2)that employees have done similar work or work requiring the same skills,and (3) that employees have been trained or could be trained to perform thework. Instead, the Union must show a clear past practice that “the work indispute has been performed exclusively by bargaining unit employees, soas to be considered a ‘fixed and established past practice accepted by bothparties.’” Id. at 13, citing Eischen award at p. 15.

There is nothing in Article IV that specifically provides that wiring frommachines (in traction elevator products) or from the hydraulic tank (inhydraulic elevator products) to junction boxes is exclusive IUEC work, andnothing that says that assembly of duct and/or brackets is exclusive IUECwork.

15 International Union of Elevator Constructors and Otis Elevator Company, GrievancesIUEC-1, 8-34 and 71-14, at p 11 (November 30, 2012) (Fishgold, Arb.) citing Kone, Inc.and IUEC, Local 35, Gr. No. 02-07/35-18 (2008) (Eischen, Arb.)

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The Company contends:

The only evidence of past practice is that TKE has been doing this work inthe factory all along. There is no evidence of past practice that this work hasbeen done exclusively in the field by the IUEC.

The Company contends that bargaining history is irrelevant. The Company

contends:

The Union asserts that a withdrawn contract proposal dredged froma notebook almost twenty years old a day before the hearing involving acontract article not in dispute, the bargaining circumstances of which areunclear now, provides probative evidence concerning the meaning of thecontract. That is not true. When management has a right to act, even if thathas not been exercised, it does not forfeit the right by withdrawing a contractproposal.16

The Company contends:

[B]argaining history has no value unless it crisply describes the views of theparties.17

The Company contends:

Parties have the ability to limit the applicability of settlement agreements tothe specific grievances or allow the settlement to control future, similarissues.18

The Company contends that Union Exhibit 14 contained no limiting language and

attempted to end “extended wiring” grievances that did not involve controllers.

16 See, e.g., Valspar Corp and United Steelworkers, 119 BNA LA 1718 (Kohn, Arb. 2004);Otis Elevator Co. and IUEC, Local 4, AAA Case No. 1130-1158-03, p. 25 (Brown, 2004).

17 Alro Steel Corp. and International Assoc. of Bridge Workers, 130 BNA LA 1601 (Ruben,Arb. 2012); Farmland Industries, Inc. and Oil, Chemical & Atomic Workers, 96 BNA LA815, 820 (Murphy, Arb.).

18 Teamsters Local 135 and New York Blower Company, 2011 BNA LA Supp. 147481(Bierig, Arb.).

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The Company contends:

As TKE has already stated, there is no reason to consider thesettlement agreements to decide this case.19 Article IV does not make thework here in dispute the exclusive jurisdiction of the IUEC. The settlementagreements may be necessary, in the Union’s view, to explain why it“acquiesced” in junction box connections at the factory despite Article IV, itis really not giving up any enumerated Article IV rights. The Union is, inthese settlement agreements, in many cases “allowing” the employer to dowhat the employer is already entitled to do. By doing so, the Union avoidsthe ultimate arbitration decision that work of that type is not Article IV work,which allows it to “grieve” another day and perhaps extract anothersettlement. Sometime, that cycle must end. [Footnote in original.]

The Company contends:

Unless there is a disclaimer in a settlement document, it may haveprecedential value and be used as evidence of a “past practice” insubsequent arbitrations.20 Moreover, there is nothing in Exhibit 14 thatconflicts with the clear language of Article IV. If anything, even without the“extended wiring” language, Exhibit 14 supports TKE’s argument, not theUnion’s. [Citation moved to footnote.]

The Company requests the Arbitrator deny Grievances numbers 2-100 and 32-45.

19 The use of settlements as evidence of anything beyond the terms of the settlement isgenerally disfavored in this industry as well. See Local 4, International Union of ElevatorConstructors and Otis Elevator Co., AAA Case No. 11 300 02180 06, pp. 13-14 (Holden,2008) (rejecting IUEC Local 4’s argument that grievance settlements are sufficient toestablish a “past practice).

20 Los Angeles County MTA, 120 LA 869 (Gentile, 2004).

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DISCUSSION

The issues to be resolved in the present arbitration are:

(1) Did the Company violate the 2012 NEBA Agreement by shipping the Endura

MRL elevator with wiring from the pump unit to a junction box pre-installed

and pre-attached in the factory?

(2) Did the Company violate the 2012 NEBA Agreement by shipping the Endura

MRL elevator with brackets pre-installed and pre-attached in the factory on

duct?

(3) If the answer to (1) and/or (2) is in the affirmative, what shall be the remedy?

The Arbitrator finds that the Company violated the 2012 NEBA Agreement in (1) and (2)

and therefore grants Grievances numbers 2-100 and 32-4 and directs the remedy set out

below. The Arbitrator’s reasoning follows.

OVERVIEW OF ARTICLE IV OF THE 2012 AGREEMENT

The undersigned agrees with the remarks by Arbitrator Herbert Fishgold in

International Union of Elevator Constructors and Otis Elevator Company, cited by the

Company at footnote 15 above, that “[n]ot every elevator component is listed” in Article

IV, that Article IV does not “list every bit of assembly work that must be done in order to

create a functioning elevator” and that “[a] complete reading of Article IV leads one to

conclude that there are particular provisions specifying what is the Union’s ‘exclusive’

work jurisdiction.” The first sentence of Article IV plainly states: “It is agreed by the parties

that all work specified in Article IV shall be performed exclusively by Elevator Constructor

Mechanics … in the employ of the Company.” (Emphasis added.) To find whether a

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particular type of work is within the exclusive work jurisdiction of the Union, one must first

determine if it is “specified” in Article IV.

Resolution of the grievance involved in Otis Elevator Company required Arbitrator

Fishgold to interpret and apply subparagraphs (c), (e) and (g) of Paragraph 2 of Article

IV. However, the present grievances require application of subparagraph (d) or (t) of

Paragraph 2. In addition, according to Arbitrator Fishgold, in the case before him, the

Union acknowledged “that the Agreement is silent on the work tasks claimed by this

grievance” and advocated “an expansive reading of ¶ 2(b) and its reference to ‘creating

and assembling of all elevator equipment’”; in the present case the Union relies strongly

on subparagraphs (d) and (t) of Paragraph 2. Given the differences in the two cases and

especially that they involve different contractual provisions, Arbitrator Fishgold’s specific

findings regarding whether the various types of work he discussed did or did not fall within

the IUEC’s exclusive work jurisdiction provide little guidance here.

Arbitrators should interpret contractual language so as to effect the mutual

intentions of the parties. It is the well established in labor arbitration that an arbitrator

should interpret language in a collective bargaining agreement in accordance with the

meanings of the words likely intended by its drafters. Where it is likely they intended

technical meanings, an arbitrator should afford technical words their technical meanings,

and where it is likely the drafters intended common meanings, an arbitrator should

interpret the language used accordingly.

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WIRING FROM THE PUMP UNIT TO A JUNCTION BOX

As noted in the Background, the Endura MRL is a hydraulic elevator. It is

undisputed that the tank and controller arrive at job sites separately.21 It is also undisputed

that no wires are attached to the controller and that a junction box is pre-wired with leads

to the tank already attached.22 It is undisputed that the tank and controller are installed in

different locations, the tank in the pit and the controller in the hoistway at the second

level.23

The Arbitrator has quoted Paragraph 2(d) of Article IV in full in another part of this

Opinion and Award. That paragraph places “all wiring, conduit, and raceways from main

line feeder terminals on the controller to other elevator apparatus and operating circuits”

within the exclusive jurisdiction of IUEC Constructor Mechanics. (Emphasis added.) It is

likely the drafters intended the technical meanings of a number of the words used. Thus,

it is appropriate to refer to definitions set out in the National Elevator Industry Education

Program’s (NEIEP) Glossary of Elevator Terms and Construction Wiring module. The

Glossary defines “conduit, electrical” as “A tubular pipe used as a raceway for the

protection of electrical wires or cables” and “raceway” as “Conduit, duct, fittings, pull

boxes, strain boxes, and junction boxes that provide protection solely for electrical

wires.”24 In the Construction Module, the authors wrote:

This [construction] wiring provides the electrical pathways for theexchange of signaling information between the logic and control equipmentin the machine room, the hoistway, the hall corridor devices, and theelevator car. In addition, it carries the electrical current to the hoisting

21 Tr. at 104-106, 278.

22 Tr. at 298-299.

23 Tr. at 296-297.

24 Union Exhibit 4 at 35, 137.

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machine, opens and closes the door, and performs other electrical functionsfor safe and reliable operations.

Read consistently with these definitions, Paragraph 2(d) is clear. The installation of all

wiring and all raceway, including junction boxes, between the controller and end points

on elevator apparatus are within the exclusive jurisdiction of IUEC Constructor

Mechanics.

One could reasonably argue that the drafters’ statement in the second sentence

of Paragraph 2(d) that controllers not be shipped with extended wiring attached meant

that the Company could ship other parts, including junction boxes, with extended wiring

attached.25 However, when read in context, the second sentence appears to clarify rather

than limit the first. The first sentence states that wiring from the terminals of the controller

is within the exclusive jurisdiction of IUEC Constructor Mechanics. The second sentence

clarifies that the Company may not get around or limit the Constructor Mechanics’

jurisdiction by shipping the controller with extended wiring already attached to its

terminals. The fact that certain elements need to be water resistant does not provide a

sufficient basis for creating an exception to the Constructor Mechanics’ jurisdiction.26 The

evidence makes clear that IUEC Constructor Mechanics are capable of making those

components water resistant.27

Applying Paragraph 2(d) to the wiring issue raised in this arbitration, it becomes

clear that installation of the wiring from the junction box between the controller and the

25 The basis for the argument would be the well accepted contract interpretation guidelineexpressio unius est exclusio alterius, to express one item is to exclude others.

26 The Arbitrator does have the power to create an exception, of course; see Article XV,Paragraph 7 of the 2012 NEBA Agreement.

27 Tr. at 148-153, 295-296.

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tank on the Endura MRL is within the exclusive work jurisdiction of IUEC Constructor

Mechanics.

The Company’s argument that the Union had to show that Article IV prohibits the

design of the Endura MRL whereby the controller and tank are located at different heights

is not persuasive. The issue is who may connect the wiring to the junction box, not

whether a junction box may or may not be set some distance from the tank.

The decision reached here does not conflict with the Settlement Agreement

between the Company and the Union executed by their representatives on June 29, 2012

and July 2, 2012, respectively, (hereinafter “2012 Settlement Agreement”) received in

evidence as Union Exhibit 14. In that Settlement Agreement, the parties agreed that the

Company could ship its Synergy model traction elevators with a prewired junction box.

The parties also agreed that the Settlement Agreement resolved a number of specifically

identified grievances and “all issues concerning the Synergy product line”. The Company

agreed to pay a substantial sum of money to the Elevator Industry Preservation Fund.

Despite the testimony of Patrick Heaney, the terms of the 2012 Settlement Agreement

leave no doubt but that it was limited to the Company’s Synergy line of products. Indeed,

nothing in that Settlement Agreement can reasonably be read as suggesting that the

Union was agreeing that the Company could ship prewired junction boxes on any or all

of its products.28 Heaney’s testimony is not entitled to sufficient weight to modify the 2012

Settlement Agreement as written.

28 The Arbitrator has reviewed the other settlement agreements offered in evidence bythe Union. Item 4 of Union Exhibit 6 and item 7 of Union Exhibit 10 may relate to the wiringissue involved in this arbitration, but that is not clear. Item 12 of Union Exhibit 7 and item8 of Union Exhibit 8 relate to wiring attached to the controller; that is not an issue in this

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The Company’s past practice argument is not persuasive. It is sufficient to note

that the language of Article IV Paragraph 2(d) is clear with respect to the wiring issue

raised by the present grievances.29

For the above reasons, the Arbitrator concludes that the Company violated Article

IV Paragraph 2(d) when it shipped Endura MRL elevators with wiring from the pump unit

to a junction box pre-installed and pre-attached in the factory.

BRACKETS

As was the case with the wiring issue, Paragraph 2(d) provides that installation of

brackets on duct work is within the exclusive jurisdiction of IUEC Mechanical

Constructors. The first sentence specifically provides that all “raceways” from main line

feeder terminals on the controller to other elevator apparatus and operating circuits is

within their exclusive jurisdiction. The NEIEP Glossary defines “raceway” as the “conduit,

duct, fittings, pull boxes, strain boxes and junction boxes that provide protection solely for

electrical wires.” (Emphasis added.) It is undisputed that the brackets involved in this

arbitration are part of the duct work of an Endura MRL. Reading the first sentence of

Paragraph 2(d) in accordance with the definition noted, it becomes clear that installation

of the brackets involved in these grievances is within the exclusive work jurisdiction of

IUEC Mechanical Constructors. The fact that the brackets in question are placed at the

arbitration. Union Exhibit 9 states that it is not precedential; therefore it is entitled to noweight.

29 The weightiest evidence offered by the Company regarding a past practice applicableto the present grievances was that regarding the shipment of some Endura A and Bmodels with controller and tank separated. However, the percentage of Endura A and Bmodels shipped in that fashion is so small that the Arbitrator could not reasonably findthat it was clearly enunciated or readily ascertainable over a reasonable period of time asa fixed and established practice; see Tr. at 322-323.

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same distance from a given point in every installation does not provide a sufficient basis

for creating an exception to the Constructor Mechanics’ jurisdiction. The evidence makes

clear that Constructor Mechanics are capable of making precise measurements.30 The

Arbitrator concludes that the Company violated Paragraph 2(d) of Article IV when it

shipped Endura MRL elevators with brackets pre-installed and pre-attached on duct in

the factory.31

For the above reasons, the Arbitrator will grant Grievances numbers 2-100 and 32-

45.

REMEDY

Having found that the Company violated Paragraph 2(d) of Article IV of the 2012

NEBA Agreement by shipping Endura MRL elevators with the junction box pre-installed

and pre-attached and with brackets pre-installed and pre-attached in the factory on duct,

the Arbitrator must frame an appropriate remedy. At a minimum, the Arbitrator must direct

the Company to cease and desist from doing both.

Gary Hooper, Product Line Manager with responsibilities for the Endura MRL line,

testified without rebuttal that installation of an Endura MRL was more labor intensive than

installation of either an Endura A or B elevator, the Company’s non-MRL hydraulic

elevators.32 That fact, however, does not provide a sufficient basis for the Arbitrator to

30 See, e.g. Tr. at 334-335.

31 Having determined that the Company violated Paragraph 2(d) by shipping Endura MRLelevators with the junction box pre-installed and pre-attached and with brackets pre-installed and pre-attached on duct in the factory, the Arbitrator need not and therefore willnot address other arguments raised by the Union. Specifically, the Arbitrator expressesno opinion regarding whether the Company’s shipping Endura MRL elevators as it hasviolated Article IV, Paragraph 2(t) of the 2012 NEBA Agreement.

32 Tr. at 299-300.

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decline the Union’s request for a make whole remedy. As discussed above, Article IV of

the 2012 NEBA Agreement sets out the exclusive work jurisdiction of IUEC Mechanical

Constructors. It makes no distinction regarding the work hours involved in any installation.

Under the circumstances, it is appropriate for the Arbitrator to direct a make whole

remedy. In accordance with the parties’ agreement, the Arbitrator will direct a remedy in

general terms and retain jurisdiction of these grievances to resolve any problems that

may arise regarding the remedy directed.33

33 The Arbitrator notes that the parties may agree on an alternative or approximateremedy in lieu of determining which employees lost time and calculating the amount oftime each lost as a result of the Company’s violations of Paragraph 2(d).

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AWARD

Having heard or read and carefully reviewed the evidence and argumentative

materials in this case and in light of the above Discussion, the Arbitrator grants

Grievances numbers 2-100 and 32-45.

The Arbitrator directs the Company to cease and desist from shipping Endura MRL

elevators with the junction box pre-installed and pre-attached and with brackets pre-

installed and pre-attached on duct in the factory, within a reasonable time. The Arbitrator

further directs the Company to make whole those employees who installed Endura MRL

elevators for the time each lost as a result of not wiring the junction box and not installing

the brackets.

The Arbitrator will retain jurisdiction of the present grievances until July 14, 2017

to resolve disputes regarding the remedy directed herein, if any. If the Company or Union

advises the Arbitrator of the existence of any dispute regarding the remedy directed on

or before 4:30 p.m. Eastern Time on July 14, 2017, the Arbitrator’s jurisdiction shall be

extended for so long as is necessary to resolve disputes regarding the remedy. If neither

the Company nor Union advises the Arbitrator of the existence of a dispute regarding the

remedy directed herein by that time and date, the Arbitrator’s jurisdiction over these

grievances shall then cease.

Dated: March 15, 2017

Jack Clarke, ArbitratorAthens, Georgia