"

In the Matter of the Arbitration Between

International Brotherhood of Electrical Workers, local 99

and

International Union of Elevator Constructors, Local #39

and

Schindler Elevator Corporation

and

Providence Place Group Limited Partnership and Morse Diesel International, Inc.

Appearances

For International Brotherhood of Electrical Workers, Local 99 ("ISEW")

Edward C. Roy, Jr. Esq., Legal Counsel

For International Union of Elevator Constructors Local #39 ("IUEC")

Robert Matisoff, Esq., Legal Counsel

For Schindler Elevator Corporation ("Schindler Elevator")

Charles O. Strahley, Esq., Legal Counsel Neal J. McNamara, Esq., Legal Counsel

For Providence Place Group Partnership ("PPG") and Morse Diesel International, Inc. ("Morse Diesel")

Bruce E. Falby, Esq., Legal Counsel

Arbitrator

Francis T. O'Brien

--,...... -, -- ------- ---

I. Statement of the Case

This case arises under the terms of a Project Labor Agreement ("PLA") dated

September, 1995 which provides for the arbitration of jurisdictional disputes.

A hearing was conducted by the undersigned Arbitrator on August 30, 1999 at

the Offices of the Rhode Island Department of Employment and Training ("RIDET"),

610 Manton Avenue, Providence, RI.

All Parties were present at the hearing and were afforded full opportunity to

introduce documentary evidence and argue their respective positions orally.

At the request of the IUEC, the Parties and the Arbitrator visited the site at

Providence Place Mall where the work in dispute will be performed.

At the request of Schindler Elevator, the Arbitrator issued a subpoena to the

Chief Elevator Inspector for the RIOET to appear at the arbitration hearing.

All Parties at the hearing agreed to be bound by the Arbitrator's Award.

The witnesses were sworn.

The Parties filed post hearing briefs.

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II. The Issue

The Issue was jointly submitted to the Arbitrator as follows:

Should the work of the pulling of and connecting of the wire between the

elevator controllers in the Elevator Machine Rooms and the elevator status panel in the

Fire Command Center at the Providence Place Mall be awarded to ISEW, Local 99 or

IUEC, Local #39?

3

III. Provision of the Project Labor Agreement

The following provisions of the PLA are particularly pertinent:

ARTICLE XVI

JURISDICTIONAL DISPUTES

Section 1. The signatories to this Project Labor Agreement adhere to the principle that jurisdictional disputes cannot and shall not interfere with the efficient and continuous construction that is required on this Project, and that necessitated entering into this Agreement. Therefore, there will be no strikes, work stoppages, slowdowns, or other disruptive activity arising out of any jurisdictional dispute. Pending the resolution of the dispute, the work shall continue uninterrupted as assigned by the Contractor.

Section 2. All construction work on this Project shall be assigned by the Contractor in accordance with the procedural rules of the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry. The basis of the assignments shall be determined after reviewing the traditional craft jurisdiction, the established area practice, and the Collective Bargaining Agreements of the Local Unions identified in Appendix A of this Agreement.

Section 3. The Unions involved in a disputed assignment agree that upon request, a Union representative shall be assigned to the dispute without delay, and that they will make a good faith effort to resolve the challenged assignment.

Section 4. Any jurisdictional dispute over the Contractor's assignment of work shall be settled in accordance with one of the following procedures: (a) Where all of the Parties involved are stipulated to procedures of

the Plan for Settlement of Jurisdictional Disputes in the Construction Industry for disputes involving building construction, the dispute will be settled in accordance with the procedural rules and decisions of that Plan and shall be binding upon the Contractor.

(b) Where all Parties are not bound by the same dispute resolution procedure, or where the dispute involves a difference among the Parties over the appropriate body with jurisdiction to decide such dispute or in any other situation not covered in paragraph (a) of this section, and if the dispute is not resolved among the Parties within five (5) days (Saturday, Sunday and Holidays excluded

4

unless the assigned work will be performed on those days), it shall be referred by anyone of the Unions, or the involved Contractor, within three (3) days (Saturday, Sunday and Holidays excluded) thereafter, to the Unions with which the disputing unions are affiliated. Representatives of the Unions and the involved Contractor shall meet promptly, but in no instance more than three (3) days after the notification to resolve the dispute. Any resolution shall be reduced to writing and signed by representatives of the involved Contractor and the Unions.

In the event that the respective Unions of the disputing locals and the involved Contractor are unable to resolve the dispute within fourteen (14) days from the date of referral, the dispute shall be referred by the interested Parties to the arbitrator named in Article XIII of this agreement. The Parties agree that the said arbitrator shall, within fourteen (14) days of such referral, conduct a hearing and render a determination of the dispute. The fee and expenses of such hearing shall be shared equally by each Union and the involved Contractor.

In such hearing, if the arbitrator determines that an agreed upon method exists to which all the parties are bound, he shall refer the dispute to that procedure for resolution. In all other cases, the arbitrator shall proceed to resolve the dispute on the merits.

Section 5. Any award or resolution made pursuant to Section 4 shall be final and binding on the disputing Unions and the involved Contractor under this Agreement only, and may be enforced in any court of competent jurisdiction. Such award or resolution shall not establish a precedent on other construction work not covered by this Agreement in all disputes under this Article, the GC shall be considered a party in interest.

Section 6. In making any determinations hereunder, there shall be no authority to assign work to a double crew, that is, to assign more employees than the minimum required to perform the work involved; nor to assign the work to employees who are not qualified to perform the work involved. However, this does not prohibit the establishment, with the agreement of the involved Contractor, of composite crews where more than one (1) employee is needed for the job. The aforesaid determinations shall decide only to whom the disputed work belongs.

Section 7. There shall be no work stoppage or interruption while any jurisdictional dispute is being resolved. The work shall proceed as assigned by the Contractor until finally resolved under the applicable procedure of this Article. The award or resolution shall be confirmed in writing to the involved parties. There shall be no strike, work stoppage or interruption in protest of any such award or resolution.

5

ARTICLE XVII

SAVINGS AND SEPARABILITY

It is not the intention of the signatories of this document to violate any laws governing the subject matter covered within this Agreement. The parties hereto agree that in the event that any provisions of this Agreement are finally held or determined to be illegal or void as being in contravention of any applicable law, the remainder of the terms and conditions of this Agreement shall remain in full force and effect unless the part or parts found to be. void are contained in Article IV Union Security. Recognition and Employment. and/or Article XIV Work Stoppage and Lockouts, which were the basis upon which this Agreement was entered into and are inseparable from the remaining portions of this Agreement.

Further. PPG. Ge, and the Unions agree that if and when any or all provisions of this Agreement are finally held or determined to be illegal or void by a Court of competent jurisdiction, that they will promptly, but in no instance later than forty-eight (48) hours from the decision of the Court, enter into negotiations concerning the substance affected by such decision for the purpose of achieving conformity with the requirements of an applicable law and the intent of the parties hereto.

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IV. Background

Morse Diesel is the General Contractor on the construction of the Providence

Place Mall and Garage Project ("Project") which is to consist of a 500·car parking

garage and mall building. The owners of the Project, the General Contractor and the

Rhode Island Building Trades Council entered into a PLA to insure that the Project be

performed in the most efficient and economical manner.

Part of the Project calls for the installation of several elevators. Schindler

Elevator was contracted to install most of the elevators. The contract for the

installation of the elevators includes a status panel which shows the status (location)

of each elevator within the hoistway. The status panel is located in the building's Fire

Command Center.

Wires from the status panel are connected to an elevator controller(s}. The

elevator controller(s) serves as the "brains" of (runs) the elevator. It is located in the

Elevator Machine Room(s}.

As reflected in the Issue, this jurisdictional dispute centers around which trade

should be assigned the work of pulling and connecting the wires between the

aforementioned locations.

A change in the Rhode Island General Laws (R.I.G.L. ") in 1997 (Joint X-3) also

bears on this case. The change, enacted by the General Assembly in the January,

1997 Session, eliminated the electrician's license referred to as Certificate 0 and

known as an "elevator journeyman electrician's license".

7

V. History of the Dispute

The dispute between the IBEW and the IUEC arose in approximately July, 1999.

Initially, representatives of the two (2) Parties met in an attempt to resolve it. They

were unsuccessful. Next, the Parties met with the Director of the RIDET in an effort

to resolve the dispute. They were unsuccessful. The Director then notified the

Arbitrator of the existence of the dispute and through his offices, the Director arranged

for the date, time and location of the arbitration hearing.

A hearing was conducted by the Arbitrator on August 6, 1999 at the RIDET,

610 Manton Avenue, Providence, RI. At the hearing, the two (2) parties present - the

IBEW and the IUEC - could not agree on a joint framing of the issue in dispute. The

Arbitrator asked each Party to offer its version of the issue. The Parties complied with

the Arbitrator's request. The Arbitrator concluded that the version offered by the

ISEW was more consistent with the facts as presented and the Arbitrator framed the

issue accordingly.

At the hearing representatives of the Parties introduced documentary evidence

and argued their respective positions orally. Both Parties provided the Arbitrator with

written summaries of their positions. The IBEW pointed out that under the R.I.G.L.,

the work in dispute is to be performed by electricians. The Arbitrator awarded the

disputed work to the ISEW.

At the hearing the IUEC indicated that it was not a signatory party to the PLA

and, as such, would not be bound by the Arbitrator's award. The Arbitrator rejected

8

as untimely the contention of the IUEC and noted that its name was affixed to the PLA

as one of the signatory unions. Since nearly four (4) years had elapsed from the

effective date of the PLA, the IUEC had ample time to resolve any dispute relative to

its status under that document. That it failed to take any action meant that de facto

it was a signatory party. The status of the IUEC under the PLA became moot at the

instant hearing because the IUEC agreed to be bound by the Arbitrator's award.

Indeed, no claim relative to the Arbitrator's jurisdiction or to his authority to render an

award was raised by any Party at the August 30, 1999 hearing.

Following the hearing of August 6, 1999, the Arbitrator issued his Award on

August 10, 1999. As noted, the Arbitrator awarded the disputed work to the ISEW.

On August 13, 1999 the Arbitrator received correspondence from Morse Diesel

suggesting that the provisions of Article XVI of the PLA were not adhered to in

conjunction with the August 6, 1999 hearing. A review by the Arbitrator of the

activities leading up to the August 6, 1999 hearing revealed that due to an

administrative snafu (for which the Arbitrator assumes responsibility) the Contractor

Parties involved in the dispute had not been invited to attend the hearing and

participate in the proceedings. This oversight was clearly contrary to the provisions

of the PLA.

In the meantime, on August 19, 1999 the ISEW obtained a Temporary

Restraining Order ("TRO") in the Superior Court of Rhode Island which limited the

performance of the work in dispute to persons who possess Class B electrical licenses

from the State of Rhode Island. On August 25, 1999, the Director of the RIDET

9

issued an Order to Cease and Desist prohibiting unlicensed members of the IUEC from

performing the work in dispute.

Recognizing that arbitrators have authority to modify or correct awards upon

timely application by a party and further recognizing the critical need to expedite the

arbitration process to a conclusion, the Arbitrator informed the Parties that he would

conduct a de novo hearing on August 30, 1999 (a date mutually acceptable to all

Parties). The basis of the Arbitrator's decision was clear: failure to invite the

Contractor Parties to the August 6, 1999 hearing, and to allow them to participate in

the meeting substantially prejudiced their rights.' Moreover, a de novo hearing was

judged to be the most efficacious approach to insure that each Party was made aware

of each piece of evidence being offered and had the opportunity to assess its merits.

No Party objected to holding a de novo hearing.

In spite of the fact that no objections were made at the August 30, 1999

hearing regarding the Arbitrator's authority to render an award of the disputed work,

the post hearing brief of the IBEW challenged the arbitrabi/ity of the dispute because

of the Arbitrator's Award which had been issued on August 10, 1999. This challenge

should properly have been raised at the August 30, 1999 hearing. It is well

established that the scope of any post hearing brief is limited to the scope of the

evidence introduced at the hearing. No new arguments may be included in a post

hearing brief. The Arbitrator rules that the ISEW waived its right to raise the issue of

lThis serves as one of the grounds under the Federal Arbitration Act for setting

aside an award.

10

"

arbitrability by failing to raise it at the hearing. Moreover, the Arbitrator notes that

even if the ISEW had raised the issue of arbitrability in a timely manner, the claim

would have been rejected because, as noted above, the purpose of the August 30,

1999 hearing was to insure that the notice provisions of the PLA were adhered to.

Specifically, all Parties who are entitled to be present at the hearing must be given

proper notice. 2 It would be patently unfair to conclude that arbitration can be binding

on a Party if that Party has not been advised of an arbitration hearing and afforded the

opportunity to participate.

On September 1, 1999, (prior to the filing of post-hearing briefs). a

Representative of the IUEC petitioned the Arbitrator to supplement the record in this

case by introducing a letter from the Chief Legal Counsel of the RIDET which

addressed the authority of the Director of the RIDET to issue an Order to Cease and

Desist. The Order to Cease and Desist had previously been entered in the record at

the August 30. 1999 hearing. No objections were raised by the other Parties. The

Arbitrator granted the request of the IUEC.

On September 2, 1999 (after the filing of post-hearing briefs), a representative

of the ISEW petitioned the Arbitrator to supplement the record in this case by

introducing an unsigned memo containing the comments of five (5) city electrical

inspectors relative to the performance of electrical work and to the conduct of

2 Although in the Arbitrator's experience, at multi-party hearings Parties sometimes choose not to appear, proper notice of the hearing is always given to them. At the August 6, 1999 hearing the Arbitrator proceeded in the good faith but mistaken belief that all Parties had been notified.

11

electrical inspections. The Arbitrator denied this request because it was untimely and

because it would deprive the other Parties of the opportunity to cross examine its

writers. Following the Arbitrator's refusal to admit the memo, the Arbitrator received

correspondence from the IUEC and Schindler Elevator objecting to its acceptance.

12

.'

VI. Positions of the Parties

The ISEW argues that the R.I.G.L. take precedence over any established "trade

practices" or "past practices" concerning performance of the work in dispute. Justice

Fortunato of the Rhode Island Superior Court interpreted and applied RI. G.l. § 5-6-2,

§5-6-29, and §23-33-1 et seq. in deciding that the work in dispute must be performed

by persons who possess Class B electrical licenses from the State of Rhode Island.

The TRO issued by Justice Fortunato binds the Arbitrator in his decision making

process.

The RIDET which is responsible for enforcing Rhode Island electrical and elevator

licensing laws has similarly interpreted the applicable Rhode Island statutes. In support

of its interpretation, the Director of the RIDET issued an Order to Cease and Desist

which prohibits unlicensed members of the IUEC from performing the work in dispute.

The Arbitrator is bound by this decision. The ISEW also points out that if "trade

practices" or "past practices" were allowed to override the R.I.G.L.. it would lead to

chaos at job-sites, and public safety would be jeopardized.

The Chief Electrical Investigator for the State of Rhode Island testified that

according to his interpretation of R.LG.L. §33-23-1 (8) (Joint X-2), the definition of an

''''elevator'' limits the work of the IUEC to wiring within the elevator shaft and the

Elevator Machine Room. He also testified that he believed that the 1997 legislative

change was the result of a decision by the elevator industry to no longer perform

certain elevator work.

13

An inspection by an electrical inspector for the State of Rhode Island on August

28, '999 of the electrical work in connection with the status panels revealed four (4)

code violations that needed to be addressed (ISEW X-5).

The installation permits which were issued for the installation of the elevator

units reference only the elevator device and do not mention any associated Elevator

Machine Room or the Fire Command Center. It follows that the jurisdiction of the

IUEC is limited to the scope of the permits.

The Standard Agreement between the National Elevator Industry, Inc. and the

International Union of Elevator Contractors {"Standard Agreement"} (Schindler X-41

does not include "remote locations" such as a Fire Command Center as within the

work jurisdiction of the IUEC. Thus, there in no contractual basis for the IUEC to claim

the disputed work.

The training which members of the ISEW receive is similar to the training which

is given to the members of the IUEC. Thus, the members of the IBEW are qualified to

perform the work in dispute.

14

SCHINDLER ELEVATOR

Approximately two (2) years ago Morse Diesel awarded the disputed work to

Schindler Elevator based on historical precedent, trade practice, and the logic and

common sense of maintaining responsibility - and hence accountability - for a unitary

elevator system under one (1) contract. Significantly, the assignment of this work

was not challenged by the ISEW until approximately July, 1999.

The Chief Elevator Inspector for the State of Rhode Island testified that the

permits that were issued by his office to Schindler Elevator for the installation of

elevators which include the disputed work. Under R.I.G.L. §23-33 his office has

jurisdiction over the entire elevator system. He testified that he had issued a memo

on March 14, 1996 which reiterated that fact. His testimony was that the disputed

work was properly the work of the IUEC. He, exclusively, has inspected elevator

systems. The electrical inspectors who testified acknowledged that they have never

performed an inspection of the disputed work..

The IUEC offers extensive training to its members of the kind of work in dispute.

The Manager of Labor Relations ("Manager") of Schindler Elevator testified that by

virtue of their training only elevator constructors have the knowledge and experience

to safely perform the work in dispute. The ISEW does not offer this type of training.

The Manager also testified that he was familiar with trade practices regarding

the performance of the disputed work in all fifty (50) states. The disputed work is part

of a unitary elevator system and is universally performed by the IUEC. The location

of elevator components - such as status panels or elevator controllers even in remote

15

locations - does not change the fact that they remain part of the complete elevator

system which is being installed. As such. it is properly the work of the IUEC.

The Manager further testified that the Standard Agreement which provides that

the jurisdiction of the IUEC work includes "all wiring, conduit. and raceways from main

line feeder terminals on the controller to other elevator apparatus and operative

circuits" includes the work in dispute.

The adjustor3 for Schindler Elevator testified that in his thirty-seven (37) years

experience in the business he has performed the disputed work many times. He

further testified that he has never seen an electrician perform the disputed work. 4 He

also testified that configurations of elevator systems vary such that sometimes the

elevator components may be located in the Elevator Machine Room where the

controller is located and sometimes - as is true in the instant case - they may be

located in a "remote" location such as the Fire Command Center. Irrespective of the

configuration the disputed work has always been performed by the IUEC. The adjuster

also testified that inspections of elevator systems have always been conducted by

state elevator inspectors. Electrical inspectors have never been present during these

inspections.

The Business Agent of Local #39 of the IUEC testified that the purpose of the

change in the R.I.G.L. in 1997 was to ensure that all elevator work was subject to

3The adjuster is responsible for the final set-up and testing of elevators.

4The adjuster has worked on projects in Rhode Island, Massachusetts and New Hampshire.

16

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inspection by an elevator inspector. It was not intended by the elevator industry as

a withdrawal from certain work. Moreover, there has been no change in the work

done by the members of the IUEC after the 1997 legislative change. The ISEW has

never performed the disputed work.

17

"

The IUEC argues that "trade practices" overwhelmingly support its position that

the work in dispute is and has historically been performed by its members. Two (2)

employees of Schindler Elevator (the adjuster and the Manager of Labor Relations) both

testified that both locally and nationally the IUEC has performed the disputed work.

In addition, the Project Manager testified that in his experience the work in dispute has

always been performed by elevator contractors. The Chief Elevator Inspector also

testified that the work in dispute is properly the work of elevator constructors.

The AFL-CIO Building Trades Impartial Jurisdictional Board ("Board") also

supports the position of the IUEC. A 1980 decision by the Board (IUEC X-1) in a

dispute involving the assignment of virtually the same work which is at issue here -

reaffirmed that the work should be performed by the IUEC. Supporting documents in

that case identified hundreds of jobs nationally in which the IUEC performed the

disputed work.

The IUEC also points out that its members receive specialized training in elevator

installation including specifically the installation and wiring of the status panels.

Electricians, on the other hand, while skilled and well trained in their craft, receive no

training in elevator installation.

Considerations of efficiency also support the IUEC. The status panels,

regardless of location, are fully integrated into the elevator system. Efficiency dictates

that a person specifically trained in elevator installation be responsible for pulling and

connecting the wires. In contrast, the position of the Chief Electrical Investigator that

18

.~. ------------------------------------~

...

the IUEC can connect the wires to the controller and pull the wires into the conduit to

the edge of the Elevator Machine Room - but not beyond - is grossly inefficient.s

Public safety is best served if the IUEC performs the disputed work because the

members of the IUEC have received training specific to the installation of an elevator

system.

The IUEC also introduced the AFL-CIO's Plan for the Settlement of Jurisdictional

Disputes in the Construction Industry ("Green Book") (/UEC-X3) which, inter alai,

identifies the factors that Arbitrators should consider in making decisions. These

include: previous decisions or agreements of record, craft agreements, established

trade practices, prevailing practice in the localitv, efficiency, cost, interests of the

consumer, and past practices of the employer. Each of these criteria that is relevant

to the instant case supports the position of the IUEC.

5The position of the Chief Electrical Investigator is that wiring by the IUEC should be limited to the elevator shaft and Elevator Machine Room. It is noted that this contention even exceeds the work jurisdiction claim of the ISEW.

19

~~I-'-U'-~:::J ~~:;;;..L..L~ c:.'-LJI~ LJL-r I • '""'~¥ -'-'--

VII. Opinion and Award

A careful and thoughtful review of the record of this case by the Arbitrator leads

to the conclusion that if the position of the IBEW has any merit whatsoever, it must

be based on a statutory mandate which authorizes the ISEW to perform the disputed

work. The Arbitrator has examined the relevant statutory passages (Joint X-1 , Joint

X-2, Joint X-3) and finds that such a mandate is lacking.

A.I.G.L. §5-6-29(3) exempts from the provisions of Chapter 6 electrical work

in devices subject to the provisions of §23-33. Elevators are One of the devices

subject to § 23-33. What is especially pertinent is the definition of an "elevator"

contained in § 23-33-1 (8). Does it include only the elements in the elevator shaft and

in the Elevator Machine Room as contended by the Chief Electrical Investigator and the

IBEW or does it include all of the components of the elevator system as contended by

the Chief Elevator Inspector, the IUEC, and Schindler Elevator. Surely weight must be

given to the testimony of the Chief Elevator Inspector for it is his office which has

statutory responsibility for the inspection of elevator systems. And, without

,

hesitation, he testified that the statute applies to the elevator system and that the

work in dispute falls under the jurisdiction of the IUEC.

The instant dispute appears to be grounded in a change in R.I.G.L. §5-6 which

was enacted by the General Assembly in 1997. The stated purpose of that change

according to the Legislative Council was to "remove a form of electrical license known

20

,.

as Certificate 0 which is a duplication of regulation" (Joint X-3). In other words the

change did not exempt from regulation the work of elevator constructors. It simply

streamlined the regulatory process.

The Arbitrator also notes that the testimony of the Chief Elevator Inspector is

consistent with the observation of the Legislative Council. He testified that the change

in the law in 1997 was not intended to reduce the amount of work an elevator

company could do but rather to eliminate the dual license requirement.

The Chief Elevator Inspector further testified that the work in dispute as

identified in the Issue of this case is part of the elevator system and is covered by the

permits issued by his office. 6 He referenced his March 14, 1996 memo to the State

Building Commissioner (Schindler X-21 in which the Chief Elevator Inspector stated that

all work in connection with the installation of elevators - including the work in dispute -

is covered by §33 of the R.I.G.L. and falls within the province of his office.

When one considers that the statutory change was the result of efforts by an

"elevator advisory committee" consisting of a member of the IUEC, several elevator

company members and public members to eliminate the dual licensing requirements,

it would be farfetched to argue that this group intended to reduce the work which

elevator companies (an hence their employees) would perform.

The Arbitrator finds the testimony of the Chief Elevator Inspector to be

especially persuasive. It is he who is the "point person" for the State of Rhode Island

GThis includes permits for electrical work in connection with the installation of elevators.

21

--r-

with respect to insuring the public safety connected with the installation of any

elevator system. His testimony was clear and unequivocal. Thus, from a legal

perspective, the work in dispute has been and should be performed by the IUEC. The

long standing statutory basis for assigning the disputed work was in no way affected

by the 1997 statutory change.

Is public safety at risk in the dispute? Public safety is and must be carefully

considered in the decision making process. One perspective of the public safety issue

can be gained by noting how other states permit the assignment of the disputed work.

Presently, every other state authorizes the IUEC to perform the disputed work. Are

the regulatory authorities of these states remiss in insuring the public safety within

their jurisdictions? The Arbitrator thinks not. Additionally, even in Rhode Island - until

the present challenge was raised by the IBEW - the disputed work was performed by

the IUEC. The IUEC cited several major Rhode Island construction projects' in which

its members performed the disputed work. Moreover, as noted, the 1997 change in

the law was not intended to have any effect on the assignment of work. The ISEW

tailed to cite even a single project in Rhode Island or elsewhere in which its members

performed the disputed work.

The Arbitrator is also persuaded that the training which the members of the

IUEC receive is superior to the training offered by the IBEW as it relates to the work

at issue. The IUEC offers training specific to the installation of an elevator system

7 Among them BankBoston in Providence, and Fidelity in Smithfield.

22

•

while the ISEW - whose training is without doubt of high quality - nonetheless offers

a more general type of training. Clearly the members of the IUEC are better trained to

perform the disputed work. Further, and significantly, the record does not show that

merely holding a Class B electrician's license demonstrates that a person has both the

training and experience necessary to perform the disputed work. On the other hand,

the superior training received by members of the IUEC does insure that an individual

is qualified. Obviously, this enhances public safety.

The code violations identified in ISEW X-5 warrant comment. First, the state

electrical inspector who reported these violations testified that he was ordered to make

the inspection and look for violations. The Arbitrator finds this instruction to be both

curious and disturbing. Second, he testified that these violations were both minor and

not uncommon. In fact his usual practice was not to "write up" such minor violations

but rater to discuss them orally with the job foreman and see that they were corrected.

Again the Arbitrator is curious as to why the usual practice was not followed in the

instant case. Final/y, he testified that he had never before been called upon to conduct

an electrical inspection of elevator work and that traditionally this type of inspection

was conducted by an elevator inspector, Again, this is a curious development. Given

the nature of these violations and the manner in which they "came into being" the

Arbitrator finds them to be of little value in deciding this case. Certainly they do not

serve as the basis for drawing any negative inference concerning the work performed

by the IUEC.

Industry and trade practices both nationally and locally overwhelmingly support

23

Sep-07-99 11:12A ECON DEPT PROV COLL 401 865-1264

the position of the IUEC. As noted, the ISEW failed to identify a single project in

which its members performed the disputed work. Cost and efficiency considerations

also support the IUEC. It simply makes sense to view the elevator system as a whole.

Indeed, every criterion that is normally used to decide cases of this type supports the

position of the IUEC.

It is fair to ask: How could the Arbitrator reach a decision in this case which is

contrary to his earlier decision? Simply put, the Arbitrator's decision is based on the

evidence submitted to him in accordance with the provisions of the controlling

agreement (PLA). When the submissions of the two hearings (August 6 and August

30) are compared and evaluated it is eminently clear that there are stark differences

both in terms of the oral testimony received and the documentary evidence introduced.

The paucity of the evidence introduced on August 6 pales against the abundance of

evidence introduced on August 30.

What remains is to reconcile the Arbitrator's decision with the Order to Cease

and Desist and the TRO.

Under Article XVII of the PLA, the Parties pledged not to violate any laws

governing the subject matter covered within the PLA. Obviously, the Arbitrator is

bound by this pledge.

The language of the Order to Cease and Desist prohibits unlicensed and

unauthorized electrical work from being performed. However, it does not specify what

constitutes unlicensed and unauthorized work. It references R.I.G.L §5-6-2 as the

controlling statute. As the Arbitrator has interpreted this statute, electrical work in

24

P.ll

.. S7P-07-99 11:12A ECON DEPT PROV COLL 401 865-1264

devices subject to § 23-33 are exempt from its provisions. § 23-33 authorizes elevator

contractors to do the disputed work. Moreover, there is nothing in the record to show

that those members of the IUEC who are performing this work have not been duly

licensed as required by §23-33-2_3_ Thus, the award of the disputed work to the IUEC

is not inconsistent with § 5-6-2 and hence is not inconsistent with the provisions of the

Order to Cease and Desist_ 8

The TAO specifies that no one who does not possess a Class B electrical license

from the State of Rhode Island may engage in electrical wiring to any fire safety box

from outside an elevator shaft. However, as the Arbitrator has noted, elevator work

is exempt from the provisions of R.I.G.L. §5-6 and is subject to the provisions of §23-

33. Perhaps this exclusion was not called to the judge's attention when the TRO was

issued.

Although the Arbitrator disagrees with the TRO, he recognizes that it is an order

of the court and that he is bound by it.

8 Although the Order to Cease and Desist may not have been lawfully issued by the RIDET, its substance nonetheless reflects the position of the RIOET with respect to the matter in dispute.

25

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~~~20A ECON DEPT PROV COLL 401 865-1264

Accordingly, the Arbitrator AWARDS as follows:

The work in dispute is to be performed by the IUEC, Local #39 subject, of course, to any controlling state laws, as properly applied by appropriate authorities or the courts.

26

Respectfully submitted,

{V A(2,. '··Cr O·Brien

Arbitrator September 7, 1 999

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