Appendix — Johnson Controls, Inc. v. United Ass'n of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry
Supreme Court brief1995
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941378 FEB 1 3 1995
No. :
nl ip edhe
Sn The
Supreme Court of the United States
October Term, 1994
JOHNSON CONTROLS, INCORPORATED, SYSTEMS
& SERVICES DIVISION, and PNEUMATIC CONTROL
SYSTEMS COUNCIL,
Petitioners,
Vv.
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO, and ITS LOCAL 353,
Respondents.
On Petition For A Writ of Certiorari
To The United States Court of Appeals
For the Seventh Circuit
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
DOUGLAS A. DARCH*
THEODORE C. STAMATAKOS
RONALD J. KRAMER
SEYFARTH, SHAW, FAIRWEATHER
& GERALDSON
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603-5803
(312) 346-8000
Attorneys for Petitioners
JOHNSON CONTROLS, INC. AND
PNEUMATIC CONTROL SYSTEMS COUNCIL
*Counsel of Record
"Chiengo Legal Copies, Inc. (312) 332-7777
i
TABLE OF CONTENTS
Decision of the United States Court of Appeals
Sor the Seventh Civcmit 2... ese A-|]
Decision and Order of the United States
District Court for the Central District of Illinois B-1
Decision of the Arbitrator ............... C-]
Pe I a ob hee er Ra oe ene D-|
a tt en ta ——_—
A-1
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 94-1278
JOHNSON CONTROLS, INCORPORATED, 3
SYSTEMS & SERVICES DIVISION, and
PNEUMATIC CONTROL SYSTEMS COUNCIL,
ss Plaintiffs-Appellees,
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF THE UNITED STATES
AND CANADA, AFL-CIO, and Its LOCAL 353,
Defendants-Appellants.
Appeal from the United States
District Court for the Central District
of Illinois, Peoria Division
No. 93 C 1123 - Michael M. Mihm, Chief Judge
Argued September 14, 1994
Decided November 15, 1994
JUDGES: Before LAY, EASTERBROOK and RIPPLE,
Circuit Judges.
"The Honorable Donald P. Lay, Circuit Judge for the
United States Court of Appeals for the Eighth Circuit, sitting
by designation.
No. 94-1278 A-2
LAY, Circuit Judge. Johnson Controls, Inc. and the United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry ("the Union") dispute whether
Johnson’s assignment of certain preventive maintenance work
to nonbargaining unit employees violates their collective
bargaining agreement. On September 26, 1989, the Union
initiated a grievance against Johnson alleging that Johnson was
using nonbargaining unit personnel to perform maintenance
work on mechanical equipment. The grievance could not be
resolved and the dispute was submitted to arbitration. The
arbitrator found in favor of the Union, concluding the
agreement covered the maintenance work. The district court
vacated the arbitrator’s award and granted summary judgment
in favor of Johnson, concluding the arbitrator went beyond the
terms of the agreement. The Union now appeals. Jurisdiction
is vested in this Court pursuant to 28 U.S.C. § 1291. For the
reasons set forth below, we reverse.
Background
Johnson Controls, Inc. is a member of the Pneumatic
Control Systems Council ("the PCSC"). The PCSC is
responsible for negotiating bargaining agreements with the
Union on behalf of its members. The Union is a qualified
labor organization under 29 U.S.C. §§ 152(5) and 185(a), and
represents employees of PCSC members for purposes of
collective bargaining. The Union’s Local 353 represents
various employees at Johnson’s Peoria location. The Union
and PCSC entered into the National Pneumatic Control
Systems Agreement ("the Agreement"), at issue in this case, on
March 31, 1989.
The Agreement mandates arbitration for certain
grievances arising between the signing parties. Paragraph 53
—— Lr .
A-3 No. 94-1278
of the Agreement defines the scope of the arbitrator’s authority
as follows:
The authority of the . . . impartial arbitrator shall be
limited to the construction and enforcement of the
express language of this Agreement as applied to the
specific grievance or issue stated in the request for
arbitration. The... impartial arbitrator shall have no
authority or jurisdiction, directly or indirectly, to add
to, subtract from, change, modify or supplement any of
the specific provisions of this Agreement.
In July, 1989, a different local chapter of the Union
filed a grievance in St. Louis against Johnson for the
assignment of some preventive maintenance work to
nonbargaining unit employees in breach of a provision of
Paragraph 13(1) of the Agreement. Paragraph 13(1) provides
in pertinent part:
This Agreement covers the rates of pay, hours and
working conditions of journeymen and apprentices
engaged in the installation, service, and maintenance of
all plumbing and/or pipe fitting systems, including
pneumatic controls and mechanical equipment and
component parts....
(emphasis added). In October 1990, the arbitrator in that
dispute found that the parties could not "agree on what was
decided between them" as to whether these workers were
covered by Paragraph 13(1). The first arbitrator concluded that
No. 94-1278 A-2
LAY, Circuit Judge. Johnson Controls, Inc. and the United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry ("the Union") dispute whether
Johnson’s assignment of certain preventive maintenance work
to nonbargaining unit employees violates their collective
bargaining agreement. On September 26, 1989, the Union
initiated a grievance against Johnson alleging that Johnson was
using nonbargaining unit personnel to perform maintenance
work on mechanical equipment. The grievance could not be
resolved and the dispute was submitted to arbitration. The
arbitrator found in favor of the Union, concluding the
agreement covered the maintenance work. The district court
vacated the arbitrator’s award and granted summary judgment
in favor of Johnson, concluding the arbitrator went beyond the
terms of the agreement. The Union now appeals. Jurisdiction
is vested in this Court pursuant to 28 U.S.C. § 1291. For the
reasons set forth below, we reverse.
Background
Johnson Controls, Inc. is a member of the Pneumatic
Control Systems Council ("the PCSC"). The PCSC is
responsible for negotiating bargaining agreements with the
Union on behalf of its members. The Union is a qualified
labor organization under 29 U.S.C. §§ 152(5) and 185(a), and
represents employees of PCSC members for purposes of
collective bargaining. The Union’s Local 353 represents
various employees at Johnson’s Peoria location. The Union
and PCSC entered into the National Pneumatic Control
Systems Agreement ("the Agreement"), at issue in this case, on
March 31, 1989.
The Agreement mandates arbitration for certain
grievances arising between the signing parties. Paragraph 53
A-3 No. 94-1278
of the Agreement defines the scope of the arbitrator’s authority
as follows:
The authority of the . . . impartial arbitrator shall be
limited to the construction and enforcement of the
express language of this Agreement as applied to the
specific grievance or issue stated in the request for
arbitration. The .. . impartial arbitrator shall have no
authority or jurisdiction, directly or indirectly, to add
to, subtract from, change, modify or supplement any of
the specific provisions of this Agreement.
In July, 1989, a different local chapter of the Union
filed a grievance in St. Louis against Johnson for the
assignment of some preventive maintenance work to
nonbargaining unit employees in breach of a provision of
Paragraph 13(1) of the Agreement. Paragraph 13(1) provides
in pertinent part:
This Agreement covers the rates of pay, hours and
working conditions of journeymen and apprentices
engaged in the installation, service, and maintenance of
all plumbing and/or pipe fitting systems, including
pneumatic controls and mechanical equipment and
component parts ....
(emphasis added). In October 1990, the arbitrator in that
dispute found that the parties could not "agree on what was
decided between them" as to whether these workers were
covered by Paragraph 13(1). The first arbitrator concluded that
No. 94-1278 A-4
Paragraph 13(1) did not cover preventive maintenance work
and therefore held for Johnson.'
On September 26, 1989, Local 353 filed this grievance
against Johnson advancing the same claim; namely, that
Paragraph 13(1) provides for preventive maintenance work on
mechanical equipment to be performed by collective bargaining
personnel. After determining the St. Louis Arbitration did not
preclude a determination on the merits, the arbitrator’ issued an
award for the Union, holding Paragraph 13(1) includes
preventive maintenance work, and thus such work is reserved
for bargaining personnel. The arbitrator drew this conclusion
after undergoing a detailed analysis of the relationship and
bargaining history of the parties. Johnson filed suit in district
court to vacate the arbitrator’s award.
eee ee ee ee
The District Court for the Central District of Illinois”
vacated the arbitrator’s award and granted summary judgment
for Johnson. Although the court did not question the
arbitrator’s factual findings, it took issue with the arbitrator’s
reasoning. In discussing why he reached the opposite result of
the St. Louis proceeding, the arbitrator stated:
'The Union filed suit to have this decision vacated. The
District Court for the Eastern District of Missouri refused to
vacate this decision, and granted summary judgment in favor
of Johnson.
*Arbitrator George Edward Larney.
*The Honorable Michael M. Mihm, Chief Judge.
A-5 No. 94-1278
[T]here was a recognition by the [PCSC] and the
Union that a resolution of the issue had not necessarily
been resolved, that it had been fudged for whatever
their respective reasons and that there was almost an
understanding that the matter would have to be
disposed of in arbitration as evidenced by the remark
made by Tarkowski to Moore at the last bargaining
session that if the Union felt the new paragraph [13(1)]
covered the work of [preventive maintenance
inspectors], the Union could file a grievance. Based on
this remark and the uncertainty as to the meaning of
what had been agreed to, the Arbitrator is of the view
that the instant case, like the St. Louis case before
Erbs, represents an exception to the "maxim" [that a
party should be barred from securing through
arbitration what it was unable to secure through
negotiations].
The court interpreted this statement to mean that the arbitrator
had found no "meeting of the minds" between the parties with
regard to the meaning of Paragraph 13(1). The court went on
to conclude that because the parties reached no agreement,
further arbitration on this issue was beyond the arbitrator’s
authority. Thus, the court vacated the arbitrator’s award
because he had drawn his interpretation of Paragraph 13(1)
from outside the Agreement. The Union now appeals the
court’s grant of summary judgment, and its denial of the
Union’s counterclaim for enforcement of the arbitration award,
attorneys’ fees, and prejudgment interest.
No. 94-1278 A-8
548 F.2d 1288, 1294 (7th Cir.) (quoting Ludwig Honold Mfg.
Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969)), cert.
denied, 431 U.S. 905 (1977). Moreover, the Agreement’s
arbitration clause provides for this type of contract
construction.‘ Thus, the thrust of the arbitrator’s analysis falls
squarely within his authority to interpret the contract. See
Enterprise Wheel, 363 U.S. at 599 (stating a court has no
business second-guessing an arbitrator’s construction of the
collective bargaining agreement); Colfax Envelope Corp. v.
Local No. 458-3M, Chicago Graphic Communications Int’l
Union, 20 F.3d 750, 754 (7th Cir. 1994) (indicating arbitrators
are meant to resolve questions of interpretation when the
meaning of a contract term is unclear).
The possible inconsistency of one paragraph of the
arbitrator’s opinion does not justify vacating the arbitrator’s
award. As we stated in Ethyl, supra, "It is only when the
arbitrator must have based his award on some body of thought,
or feeling, or policy, or law that is outside the contract... .
that the award can be said not to ‘draw its essence from the
collective bargaining agreement... ."" 768 F.2d at 185
(quoting Enterprise Wheel, 363 U.S. at 597) (citations omitted)
(emphasis in original). The arbitrator’s opinion is dominated
by a discussion of the meaning of express language of
Paragraph 13(1). In addition, the Supreme Court has stressed
that a "mere ambiguity in the opinion accompanying an award,
which permits the inference that the arbitrator may have
‘The clause limits the arbitrator’s authority to "construction
and enforcement of the express language" of the Agreement.
The arbitrator’s analysis of the bargaining history of the parties
to discern the meaning of the express language of Paragraph
13(1) falls squarely within this clause.
A-9 No. 94-1278
exceeded his authority, is not a reason for refusing to enforce
the award." Enterprise Wheel, 363 U.S. at 598; see also
Chicago Typographical Union No. 16 v. Chicago Sun-Times,
Inc., 935 F.2d 1501, 1506 (7th Cir. 1991) (stating arbitrators’
opinions need not be well written and should not be subjected
to "beady-eyed scrutiny"). Thus, any confusion the arbitrator
may have caused is insufficient to support the lower court’s
decision.
We also reject the district court’s conclusion that
because the arbitrator found the parties came to no "meeting of
the minds” concerning the scope of Paragraph 13(1), further
arbitration on this issue was beyond his authority. Assuming
arguendo that the arbitrator actually concluded the parties
reached no "meeting of the minds" on the meaning of
Paragraph 13(1), such a finding does not prohibit the arbitrator
from interpreting the provision. In Colfax Envelope, supra, we
declared that contracting parties’ disparate understandings of
a particular provision of a collective bargaining agreement do
not render the provision nonarbitrable. 20 F.3d at 754. We
stated, "It is common for contracting parties to agree--that is,
to signify agreement--to a term to which each party attaches a
different meaning. It is just a gamble on a favorable
interpretation by the authorized tribunal should a dispute arise."
Id. (emphasis in original). We further clarified this principle:
"When parties agree to a patently ambiguous term, they submit
to have any dispute over it resolved by interpretation. That is
what courts and arbitrators are for in contract cases--to resolve
‘Our analysis is in agreement with the Union’s argument
that neither the first arbitrator nor Arbitrator Larney’s opinion
found there was no agreement. Neither party ever submitted
this argument at either arbitration proceeding.
No. 94-1278 A-10
interpretive questions founded on ambiguity." Jd. (emphasis in
original). Only if the contract provision contains a "latent
ambiguity," or, in other words, is the result of a mutual
misunderstanding, is it subject to rescission and outside the
arbitrator’s interpretive authority. Jd Because Paragraph
13(1) clearly is not the product of a mutual misunderstanding
between PCSC and the Union, the district court’s "meeting of
the minds" analysis was erroneous.
Thus, we hold the district court improperly upset the
arbitrator's award. We therefore reverse with directions to
enforce the award.
II.
The Union also argues the district court erred in
denying its request for attorneys’ fees and costs. Although we
find in favor of the Union, this case presents at least a
colorable question of law. We cannot conclude, therefore, that
Johnson’s arguments before the district court and on appeal
were frivolous or in bad faith. Thus, we agree with the district
court’s denial of an award of fees and costs. See, e.g,
Chicago Newspaper Publishing Ass'n v. Chicago Web Printing
Pressmen’s Union No. 7, 821 F.2d 390, 398 (7th Cir. 1987)
(stating that while the court disagreed with the employer’s
argument, it would not award fees to the union because the
employer did not exhibit bad faith in challenging the
arbitration award).
IIT.
For the foregoing reasons, the district court’s grant of
summary judgment in favor of Johnson is reversed with
directions to enforce the arbitration award. The district court’s
A-11 No. 94-1278 |
denial of the Union’s request for attorneys’ fees, however, is
affirmed.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
B-1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JOHNSON CONTROLS, INC. SYSTEMS )
& SERVICES DIVISION, and )°
PNEUMATIC CONTROL SYSTEMS )
COUNCIL, )
)
Plaintiffs, )
)
V. ) Case No
) 93-1123
UNITED ASSOCIATION OF )
JOURNEYMEN AND APPRENTICES OF ) (Final
THE PLUMBING AND PIPE FITTING ) Judgment
INDUSTRY OF THE UNITED STATES _) entered
AND CANADA, AFL-CIO, and Its ) 1/21/94)
LOCAL 353, )
)
Defendants. )
ORDER
Pending before the Court is Plaintiffs Johnson Controls’
and Pneumatic Control Systems’ Motion for Summary
Judgment [11] and Defendant United Association’s Motion for
Summary Judgment, Attorneys’ Fees and Prejudgment Interest
[14]. For the reasons set forth below, the Plaintiffs’ Motion is
granted, and the Defendants’ Motion is denied.
B-2
STATEMENT OF THE CASE
Plaintiff Johnson Controls, Inc. [Johnson] is one of
several members of the Pneumatic Control Systems Council
[PCSC]. PCSC exists to negotiate collective bargaining
agreements on behalf of its constituent members with
Defendant United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry [United Association].
United Association is a labor organization within the meaning
of 29 U.S.C. §§ 152(5) and 185(a) representing employees for
purposes of collective bargaining on behalf its members
employed by members of PCSC. Defendant Local 353 is a
local union of United Association that represents, for collective
bargaining purposes, certain employees at Johnson Controls’
Peoria, Illinois operation. United Association and PCSC
entered into the National Pneumatic Control Systems
Agreement [Agreement], effective March 31, 1989.
The Agreement provides for the arbitration of
grievances arising between the parties thereto. Art. XVII, 51.
Article XVII, Paragraph 53 provides that:
[t]he authority of the Arbitration Board and of
the impartial arbitrator shall be limited to the
construction and enforcement of the express
language of this Agreement as applied to the
specific grievance or issue stated in the request
for arbitration. The Arbitration Board and the
impartial arbitrator shall have no authority,
directly or indirectly, to add to, subtract from,
change, modify, or supplement any of the
specific provisions of this Agreement.
On July 6, 1989, Local 562 of United Association in St.
Louis, Missouri, filed a grievance against Johnson for the
os 0 a cai erie ae aaa cea aay
B-3
assignment of certain preventative maintenance work to non-
bargaining unit employees, in breach of Paragraph 13 of the
Agreement. Article II, Trade and Work Jurisdiction, Paragraph
13, provides in pertinent part:
(1) This Agreement covers the rates of pay, hours and
working conditions of journeymen and apprentices
engaged in the installation, service, and maintenance of
all plumbing and/or pipe fitting systems, including
pneumatic controls and mechanical equipment and
component parts...
The grievance was heard by Arbitrator Thomas J. Erbs on
June 5, 1990. On October 5, 1990, Arbitrator Erbs found that
an agreement had not been reached by the parties on this issue
and held that provisions not expressly stated in the contract
should not be created by "implication or arbitral fiat."
Therefore, Arbitrator Erbs found for Johnson. On
December 28, 1990, United Association and the Local Union
filed suit to vacate Arbitrator Erbs’ award in district court. The
District Court for the Eastern District of Missouri granted
summary judgment for the defendants on August 18, 1992.
On September 26, 1989, Local 353 of the Union
Association in Peoria, Illinois filed a grievance against Johnson
advancing the same claim and violation of the same Agreement
_ provision as the St. Louis grievance. The grievance turned on
the issue of whether Paragraph 13(1) of the Agreement
provided for preventative maintenance work on mechanical
equipment to be performed by collective or non-collective
bargaining unit personnel. On April 9, 1991, Arbitrator George
Edward Larney held an arbitration hearing. On May 19, 1992,
Arbitrator Larney, in an interim award, found that Arbitrator
Erbs’ 1990 decision did not preclude a determination on the
merits of the Peoria grievance, and on February 3, 1993, in a
B-4
56 page written opinion, Arbitrator Larney issued an award for
United Association and the Local Union on the merits. In that
opinion, Arbitrator Larney held that Paragraph 13(1) of the
Agreement included preventative maintenance work and that
Johnson breached the Agreement by assigning preventative
maintenance work to non-bargaining personnel.
On April 5, 1993, Johnson and PCSC filed this action
pursuant to 29 U.S.C. § 185 to vacate Arbitrator Larney’s
award.
MOTION FOR SUMMARY JUDGMENT
On a motion for summary judgment, the district court
must determine "whether the record shows that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Colan v. Cutler-
Hammer, Inc., 812 F.2d 357, 360 (7th Cir.) (per curiam), cert.
denied, 484 U.S. 820, 108 S.Ct. 79 (1987), quoted in Wolf v.
City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir. 1989). The
moving party has the burden of establishing the lack of such an
issue.
Of course, a party seeking summary judgment
always bears the initial responsibility of
informing the district court of the basis for its
motion, and identifying those portions of "the
pleadings, depositions, answers. to
interrogatories, and admissions on file, together
with the affidavits, if any," which it believes
demonstrates the absence of a genuine issue of
material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548
(1986).
ee ee
B-5
Once the movant has made a properly supported motion,
the non-movant has the responsibility of going beyond the
pleading and setting forth specific facts demonstrating the
existence of a genuine issue of fact for trial. Randle v. LaSalle
Telecommunications, Inc., 876 F.2d 563, 567 (7th Cir. 1989);
Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d
1024, 1031-32 (7th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct.
261 (1988). See Celotex, 477 U.S. at 325. A material fact
must be "outcome determinative under the governing law."
Shlay v. Montgomery, 802 F.2d 918, 920 (7th Cir. 1986),
quoting Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.), cert.
denied, 464 U.S. 918 (1983). The fact is genuinely disputed
when "the evidence is such that a reasonable jury could return
a verdict for the non-moving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986), quoted
in Mays v. Chicago Sun-Times, 865 F.2d 134, 136 (7th Cir.),
cert. denied sub nom. Platt v. U.S. Court of Appeals for the
Seventh Circuit, et al., 493 U.S. 900, 110 S.Ct. 259 (1989).
Thus, the non-movant must produce proper documentary
evidence to support his contentions. Howland v. Kilquist, 833
F.2d 639, 642 (7th Cir. 1987).
DISCUSSION
The scope of judicial review of arbitration awards is
extremely narrow. United Paperworkers Int’] Union v. Misco,
Inc., 484 U.S. 29, 43, 108 S.Ct. 364, 373 (1987); Ethyl Corp.
v. United Steelworkers of America, 768 F.2d 180, 183 (7th Cir.
1985), cert. denied, 475 U.S. 1010, 106 S.Ct. 1184 (1986). An
arbitration award will be upheld so long as it "draws its essence
from the collective bargaining agreement." Ethyl, 768 F.2d at
184, quoting, United Steelworkers v. Enterprise Wheel & Car
Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361 (1960). This is
true even where the court finds that the arbitrator misinterpreted
the contract. Ethyl, 768 F.2d at 184.
B-6
The test of whether an award "draws its essence from"
the underlying agreement is "whether the arbitrator had
exceeded the powers delegated to him by the parties." Ethyl,
768 F.2d at 184. An arbitrator derives his authority exclusively
from the parties as expressed through the agreement.
Therefore, an arbitrator's authority is limited to the
interpretation and application of the applicable collective
bargaining agreement. United Steelworkers, 363 U.S. at 597,
80 S.Ct. at 1361; Ethyl, 768 F.2d at 185. If an arbitration
award is found to be within the confines of the arbitrator’s
authority and based on an "honest decision" by the arbitrator,
"after a full and fair hearing of the parties," the award will be
upheld even if a court finds the award was based on an error of
either fact or law. Ethyl, 768 F.2d at 183. In other words, if
the court finds that the arbitrator interpreted the contract in
making the award, the court’s function is at an end. Ethyl, 768
F.2d at 187. Moreover, reasonable doubts on this determination
must be resolved in favor of enforcing the award. Ethyl, 768
F.2d at 185. To set aside an arbitration award, the court must
find that the award was not based on the contract.
Therefore, the only issue for this Court is whether
Arbitrator Larney, in making the February 3, 1993 award,
exceeded his jurisdiction to arbitrate this matter.
The issue before Arbitrator Larney was whether
Paragraph 13(1) of the Agreement provided for preventative
maintenance work on mechanical equipment to be performed by
collective or non-collective bargaining unit personnel. Prior to
this Agreement, the work at issue was performed by
non-collective bargaining unit personnel. Whether the language
modifications to Paragraph 13(1) of this Agreement actually
changed the work jurisdiction at issue from that of the previous
agreement necessarily required a determination on the intent of
the parties to this Agreement. The parties to this litigation do
‘i
wi
ox
Py]
a
4
B-7
not dispute that to determine the intent of the parties, Arbitrator
Larney could consider extrinsic evidence.
Arbitrator Larney stated at pages 36 and 37 of his
written opinion that: :
In his testimony in [the St. Louis arbitration],
[Jim] Tarkowski [Manager for Human Resources
at Johnson Controls and Chairman of the
Council’s bargaining committee] testified that
when the Council agreed to drop its proposed
Paragraph [13(2)], the list of tasks/duties it
viewed as not work falling within the [United
Association’s] jurisdiction, and, at’ the same
time, accepting the language of Paragraph
[13(1)] as modified, he (Tarkowski) stated to
[M. Eddie Moore, Chairman of United
Association Negotiating Committee] more than
one time that in accepting the language of .
[13(1)], the member companies [of PCSC] would
continue to operate as they had in the past, and
that the Council was not agreeing the
Paragraph [13(1)] covered work done by
[preventative maintenance inspectors] or Tech
Reps. (Emphasis added).
Arbitrator Larney also stated that Tarkowski testified to stating
during negotiations that, "if the Union felt the [modified
paragraph] covered the [work of preventative maintenance
instructors] the Union could file a grievance." Tarkowski also
testified that Moore did not respond to this comment when it
was made at the negotiations. According to Tarkowski, as
restated by Arbitrator Larney, the Council’s view was that the
language modification of Paragraph 13(1) resulted in the Union
B-8
completely giving up the right to perform preventative
maintenance work.
In contrast to this, Arbitrator Larney’s opinion also
acknowledged Tarkowski’s testimony that he knew the Union
was emphatic about the language modifications to Paragraph
13(1) and that Moore’s stated purpose for the language
modifications was to increase the scope of United Association’s
work. Arbitrator Larney wrote, however, that Tarkowski
testified that "he does not recall whether he responded to Moore
by telling him it was the Council’s view that by eliminating the
‘incidental to’ language [of Paragraph 13], the Union was
decreasing the scope of its work jurisdiction."
This Court is unable to ascertain the chronology of the
above testimony of Tarkowski as it relates to the negotiations
process of the Agreement. The exact chronology would be
probative on the issue of the intent of the parties with regard to
their understanding of the substance of Paragraph 13. What is
obvious from the above, however, is that the parties agreed to
accept the language of Paragraph 13(1) as modified. On the
other hand, what is not obvious is whether the parties agreed as
to just what that language meant in terms of the Union’s work
jurisdiction or, as the Defendants argue, whether the parties
agreed that the meaning of that Paragraph would be determined
later by filing a grievance.
In any event, the decision of this Court turns on
Arbitrator Larney’s determination as to the intent of the parties.
At page 55 of his written opinion, Larney stated that:
there was a recognition by the Council and the
Union that a resolution of the issue had not
necessarily been resolved, that it had been
fudged for whatever their respective reasons and
. 3
B-9
that there was almost an understanding that the
matter would have to be disposed of in
arbitration as evidenced by the remark made by
Tarkowski to Moore at the last bargaining
session that if the Union felt the new paragraph
[13(1)] covered the work of [preventative
maintenance inspectors], the Union could file a
grievance. (Emphasis added).
Arbitrator Larney wrote that "[b]ased on this remark and the
uncertainty as to what had been agreed to, [he] is of the view
that the instant case, like the St. Louis case ..., represents an
exception to the ‘maxim’" that a party should be barred from
securing through arbitration what it was unable to secure
through negotiations.
If the parties to this Agreement intended that the agreed
upon language would be determined later by an arbitrator, the
Agreement did not articulate that intent, and Arbitrator Larney’s
findings of fact, as quoted above, did not indicate as much. In
fact, Arbitrator Larney, as the above quote states, concluded
that an agreement on the meaning of Paragraph 13(1) had not
been reached. Once Arbitrator Larney made the determination
that there was no meeting of the minds regarding Paragraph
13(1) and the Union’s work jurisdiction, further arbitration of
this issue on the merits was beyond the scope of Arbitrator
Larney’s authority pursuant to the Agreement. Paragraph 53 of
Article XVII provides that the arbitrator’s authority is "limited
to the construction and enforcement of the express language of
this Agreement ... and the impartial arbitrator shall have no
authority or jurisdiction, directly or indirectly, to add to,
subtract from, change, modify, or supplement ... this
Agreement."
B-10
With all due respect to Arbitrator Larney, his words
here reveal a violation of the limits of his authority under the
Agreement and to his obligation at law to interpret and apply
the collective bargaining agreement. The issue before
Arbitrator Larney was the intent of the parties; the
interpretation of the paragraph at issue turned on such a
determination; and as he admittedly states, there was no
meeting of the minds with respect to Paragraph 13(1).
Necessarily, Arbitrator Larney’s award was based "on some
body of thought, or feeling, or policy, or law that is outside the
contract." Ethyl, 768 F.2d at 185, quoting, United
Steelworkers, 363 U.S. at 597, 80 S.Ct. at 1361.
CONCLUSION
Therefore, this Court finds that Arbitrator Larney’s
award did not draw its essence from the collective bargaining
Agreement. The Plaintiffs’ Motion is granted. The
Defendants’ Motion is denied. The Arbitration Award is
vacated. Case terminated.
ENTERED this 19th day of January, 1994.
Michael M. Mihm
Chief United States District Judge
B-11
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JUDGMENT IN A CIVIL CASE
JOHNSON CONTROLS INC., Systems
& Services Division
PNEUMATIC CONTROL SYSTEMS
COUNCIL
Plaintiffs
Case No. 93-1123
vs. (Final Judgment
entered 1/21/94)
UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES
AND CANADA, AFL-CIO, LOCAL 353
Defendants
UNITED ASSOCIATION OF
JOURNEYMEN AND APRENTICES OF
THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES
AND CANADA, AFL-CIO, LOCAL 353
Counter-Claimants
vs.
JOHNSON CONTROLS INC.
PNEUMATIC CONTROL SYSTEMS COUNCIL
Counter-Defendants
B-12
oO JURY VERDICT. This action came before the Court
for a trial by jury. The issues have been tried and the jury has
rendered its verdict.
1 DECISION BY THE COURT. This action came to
hearing before the Court. The issues have been heard and a
decision has been rendered.
IT IS ORDERED AND ADJUDGED that judgment is
entered in favor of the plaintiffs and against the defendants.
ENTER this 20th day of January, 1994.
JOHN M. WATERS, CLERK
BY: DEPUTY CLERK
IN THE MATTER
OF THE ARBITRATION
BETWEEN
EMPLOYER
JOHNSON CONTROLS,
INC. SYSTEMS &
SERVICES DIVISION
PEORIA, ILLINOIS and
PNEUMATIC CONTROL
SYSTEMS COUNCIL
AND
UNION
UNITED ASSOCIATION
OF JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF
THE UNITED STATES
AND CANADA, AFL-
CIO; LOCAL 353
FMCS 90-26923
RIEVANCE
DETERMINATION AS TO
WHETHER EMPLOYER
VIOLATED ARTICLE II,
PARAGRAPH 13(1) OF
THE NATIONAL
AGREEMENT BY
ASSIGNING DISPUTED
WORK TO NON-
BARGAINING UNIT
EMPLOYEES
OPINION AND AWARD
(Decided February 3, 1994)
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PRELIMINARY INFORMATION
CASE PRESENTATION - APPEARANCES
EMPLOYER UNION
RAY J. SCHOONHOVEN ~ BRIAN A. POWERS
DOUGLAS A. DARCH SALLY M. TEDROW
JEFFREY C. KAUFFMAN Attorneys
Attorneys for Pneumatic O’DONOGHUE &
Control Systems Council O’ DONOGHUE
SEYFARTH, SHAW, 4748 Wisconsin Avenue,
FAIRWEATHER & N.W.
GERALDSON Washington, D.C. 20016
55 East Monroe Street (202) 362-0041
Suite 4200
Chicago, Illinois 60603
(312) 346-8000
AND
JOHN W. BRAHM
Attorney for Johnson
Controls, Inc.
FOLEY & LARDNER
First Wisconsin Center
777 East Wisconsin
Avenue
Milwaukee, Wisconsin
53202
(414) 271-2400
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CHRONOLOGY OF RELEVANT EVENTS’
Decision by the Arbitrator that the Subject May 19, 1992
Grievance Originating in the Company’s
Peoria Branch Office and Involving Eight
(8) Union Locals Located in Central Illinois
Was Substantively Arbitrable; Decision
Rendered
Post-Hearing Briefs Pertaining to the Merits
Received by the Arbitrator:
UNION August 7, 1992
EMPLOYER August 8,1992
By Letter Dated August 10, 1992 To the August 18, 1992
Parties, the Arbitrator Interchanged the
Post-Hearing Briefs and Declared The Case
Record on the Merits Officially Closed As
Of the Date the Last Brief Was Received;
Case Record Closed As of Decision by
United States District Judge, August 18, 1992
Clyde S. Cahill, Wherein He Dismissed )
The Union’s Suit to Vacate Arbitrator
Thomas J. Erbs’ Award Rendered
October 5, 1990 Concerning The St. Louis
Work Jurisdiction Grievance (Grievance 7-
‘This Chronology Section is a continuation of the
Chronology Section set forth by the Arbitrator in the
Opinion and Disposition he rendered in the matter of the
Subject grievance’s substantive arbitrability.
Ca
6-89), Cahill Holding that Arbitrator Erbs
Did, In Fact, "Interpret" the Contract In
His Ultimate Decision; Order Granting
Employer’s (Defendant) Motion For
Summary Judgment and Denying Union’s
(Plaintiff) Motion For Summary Judgment
and Further Order Dismissing the Matter
Dated
Letter Dated August 20, 1992 From Jeffrey August 20, 1992
C. Kauffman, One of the Attorneys for
PCSC, Advising This Arbitrator of Judge
Cahill’s Decision to Dismiss the Union’s
Suit to Vacate Arbitrator Erbs’ Award and
Forwarding a Copy of Judge Cahill’s
Judgment and Memorandum Opinion Dated
August 18, 1992; Letter and Copy of
Cahill’s Opinion Hand Delivered to
Arbitrator and Received by Him
Letter to the Parties From the Arbitrator August 24, 1992
Acknowledging Receipt of Judge Cahill’s
Judgment and Order and Memorandum and
Order Both Dated August 18, 1992
Forwarded to Him by Employer Counsel,
Jeffrey C. Kauffman, and Apprising the
Parties That, Upon His Review of Cahill’s
Memorandum and Order, the Arbitrator
Found Judge Cahill’s Holding Not to Be
Inconsistent With the Arbitrator’s Ruling
on Arbitrability Rendered May 19, 1992,
Stating the View That the Court Correctly
Recognized Its Charge of Judicial Review
of Erbs’ Award to be Narrow, Thereby
C-5
Refraining From Revisiting the Merits of
the Case Holding that Erbs Performed the
Task For Which He Was Hired,
Specifically that Erbs Interpreted a Section
of the National Agreement Deemed by the -
Court to be Ambiguous and that Erbs Did
So Without Exceeding His Authority; This
Arbitrator Apprised the Parties That He
Did Not Read Into Judge Cahill’s Decision
That The Court In Any Way Deemed Erbs’
Decision To Be the Correct Holding Or
That It Concurred In the Decision
Rendered by Erbs; This Arbitrator Further
-Apprised the Parties That Even Assuming,
Arguendo, the Court Was In Concurrence
With Erbs’ Decision, Such Concurrence
Did Not Affect The May 19, 1992
Arbitrability Decision and, Additionally,
Stating That It Was Irrelevant As To
Whether Or Not the Court Vacated the
Erbs’ Award Relative to This Arbitrator’s
Finding That Pursuant to Paragraph 53 of
the National Agreement, Each Specific
Initiated Grievance Is To Be Decided On a
Case-by-Case Basis; The Arbitrator
Apprised That Notwithstanding These
Determinations, He Would Incorporate
Judge Cahill’s Judgment and Order and the
Accompanying Memorandum and Order As
Part of the Record Evidence In This Instant
Matter; Letter Dated
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ISSUE
In the absence of a joint stipulation of the issue and given the |
finding rendered by this Arbitrator previously that the issue is |
an arbitrable one, the following is an independent statement by
each Party of the issue to be resolved on the merits.
UNION
Did Johnson Control’s branch office in Peoria violate
Paragraph 13 of the Agreement (Jt. Ex. IP) by
assigning bargaining unit work to non-bargaining unit
employees? (Tr. p. 13)
If so, the Union requests as a remedy an Award
declaring that the disputed work is covered by the
Agreement (Jt. Ex. IP), specifically Article II,
Paragraph 13 and ordering all affected employees to be
made whole.
EMPLOYER
Whether the Company has violated the 1989-91
National Collective Bargaining Agreement (Jt. Ex. IP)
between the Council and Union by assigning filter
changing, oiling and greasing, belt adjusting, and other
routine preventative maintenance work to Preventive
Maintenance Inspectors (PMIs) at the Peoria branch?
C-7
RELEVANT DOCUMENTATION
APPLICABLE CONTRACT PROVISIONS (Jt. Ex. IP)
AR II
T E AND WORK JURISDICTION
13. (1) This Agreement covers the rates of pay,
hours and working conditions of journeymen and
apprentices engaged in the installation, service, and
maintenance of all plumbing and/or pipe fitting
systems, including pneumatic controls and mechanical
equipment and component parts for all of the above
which also includes fabrication, assembling, erection,
| installation, dismantling, replacement, repairing,
reconditioning, adjusting, altering, calibrating, servicing
of all plumbing and/or pipe fitting systems, pneumatic
controls and/or mechanical equipment, and handling,
unloading, distributing, reloading, tying-on, and
hoisting of all piping materials, appurtenances and
equipment used in connection to said plumbing or
piping systems, pneumatic controls, and/or mechanical
equipment, by any method, including all hangers and
supports of every description and all other work
included in the trade jurisdictional claims of the United
Association.
(2) Any dispute over the meaning and
interpretation of Paragraph 13 shall be immediately
submitted to United Association representatives of the
General Office on the one hand, and the Secretary of
the Labor Relations Committee of the Council on the
other (per Paragraph 51, Step 2). With the exception
that if not settled within three (3) working days, the
grievance shall be reduced to writing and submitted to
C-8
Arbitration as set forth in Steps 3 and 4 of Paragraph
51 of the Agreement.
PARTIES TO THE AGREEMENT
* * * *
WHEREAS, the Employer is engaged in the
pneumatic control systems industry throughout the
United States and is known as a "National Pneumatic
Control Contractor," and in the performance of such
work requires the services of competent, skilled and
qualified journeymen and apprentices; and
WHEREAS, the Union is affiliated with the
American Federation of Labor and Congress of
Industrial Organizations and has in its membership in
local unions throughout the United States and Canada
skilled and qualified journeymen and apprentices
competent to perform all the work coming within the
trade and craft jurisdiction in the pneumatic control
systems industry; and
WHEREAS, the Employer and the Union desire
to mutually establish and stabilize wages, hours and
working conditions for journeymen and apprentices
employed on a nationwide basis with said Employer;
and
WHEREAS, to encourage closer cooperation
and understanding between the Employer and the
Union in the pneumatic control systems industry to the
j
C-9
end that satisfactory, continuous and harmonious labor
relations exist between the parties to this Agreement;
* * * *
ARTICLE I
RECOGNITION
11. The Council recognizes the Union as the sole
and exclusive bargaining representative for all
journeymen and apprentices in the employ of the
Employer with respect to wages, hours and other terms
and conditions of employment, on any and all work in
the pneumatic control systems industry described in
Article II of this Agreement.
1A. The management of the Employer’s business
including, but not limited to, the direction of the
working force, the right to hire, to plan, direct, control
and schedule all operations (including the scheduling of
the work force), and the right to establish, eliminate,
change or introduce new or improved methods,
machinery, quality standards or facilities, is the sole
and exclusive prerogative and responsibility of the
Employer. All rights not specifically nullified by this
Agreement are retained by the Employer.
ARTICLE VIII
SUPPLYING JOURNEYMEN AND APPRENTICES
* * * *
23. The Employer shall notify the local union to
refer competent and skilled journeymen and apprentices
as required.
26.
43.
If a requirement for journeymen, competent and
skilled in the work covered by this Agreement, exists,
and such journeymen cannot be obtained under this
Article, the Employer shall be permitted to hire and
train persons, subject to the provisions of Article IV.
It is understood that preference for such employment
and training shall be given to journeymen with previous
experience in the plumbing and pipe fitting industry.
* * * *
ARTICLE Xill
SUBCONTRACTING
* * * *
In order to secure work for employees working
for the Employer under this Agreement, and in order to
protect wages and working conditions of such
employees, the Employer agrees to make reasonable
effort to perform service and maintenance work
covered by Article II, Paragraph 13 of this Agreement
with employees covered by this Agreement. However,
after such effort, the Employer reserves the right to
subcontract the work referred to herein.
BACKGROUND
As set forth in the May 19, 1992 Opinion and Disposition
addressing the sole issue of the subject grievance’s
arbitrability, the Employer shall be referred to variously as
Johnson Controls, Johnson, JCI, or the Company; the Union
shall be referred to variously as the United Association, UA,
C-11
or the Union; and together the Company and the Union shall
be known as the Parties. Further, the voluntary unincorporated
association known as the Pneumatic Control Systems Council
to which Johnson is one of five (5) Company members and
under whose auspices the National Collective Bargaining
Agreement (Jt. Ex. IP) is negotiated on behalf of numerous
companies signatory to the Agreement, shall be referred to
herein as the Council.'
Historically, the Council and the Union entered into a formal
collective bargaining relationship with the negotiation of an
initial national collective bargaining agreement in early 1969.
This occurred apparently as a result of the desire of companies
operating in the pneumatic control systems industry to have a
labor contract that better suited the unique aspects of their
business as opposed to continuing to be party to the generic
and much broader national construction agreement. According
to the record evidence, until the initial national pneumatic
control systems agreement became effective April 1, 1969, the
pneumatic control employers continued operating under the
1965 National Construction Agreement (Un. Ex. 1-Stl.). At
'The other company members that comprise the Council
are Barber-Colman Company, Honeywell, Inc., Landis & Gyr
Powers, and Robertshaw Controls Company (Jt. Ex. IP, P16).
In addition to these companies and Johnson Controls, other
signatory companies are known to the Parties as either
Associate member companies, those that are sponsored by, and
licensees of the five (5) companies comprising the Council and
Independent member companies, those companies that are not
affiliated in any way with any of the other companies party to
the Agreement. It is estimated that altogether, nationwide,
there are approximately fifty (50) companies all inclusive that
are signatories to the Agreement (Jt. Ex. IP).
C-12
the outset, the Council and the Union were cognizant of the
importance of trade or work jurisdiction of bargaining unit
members vis-a-vis as encompassed by the type of work
performed by companies in the pneumatic control system
industry. That work involved plumbing and pipe fitting as
related to the installation, service and maintenance of all
pneumatic control systems, and component parts thereof and
were associated primarily with new construction. As such, the
Council and the Union agreed upon the following work
jurisdiction clause as set forth in Article II, Paragraph 13 and
guaranteed that work to be exclusively bargaining unit work as
set forth in Paragraphs 14 and 15 which also follow as set
forth below:
ARTICLE II
TRADE AND WORK JURISDICTION
13. This Agreement covers the rates of pay, hours
and working conditions of all journeymen and
apprentices employed by the Employer doing plumbing
and pipe fitting as related to the installation, service,
and maintenance of all pneumatic control systems, and
component parts thereof, including fabrication,
assembling, erection, installation, dismantling,
repairing, reconditioning, adjusting, altering, and
servicing of said pneumatic control systems, and the
handling, unloading, distributing, reloading, tying on,
and hoisting of all piping materials, and appurtenances
and equipment used in connection with said pneumatic
control systems by any method, including all hangers
and supports of every description, and all other work
included in the trade jurisdictional claims of the United
Association.
C- 13
14. In recognition of the above work jurisdiction
claims, it is understood and agreed that the assignment
of work and the settlement of jurisdictional disputes
involving any other building trades organizations, shall
be settled and adjusted in accordance with the
procedure established by the National Joint Board for
the Settlement of Jurisdictional Disputes, or any
successor agency of the Building and Construction
Trades Department. There shall be no work stoppages
because of jurisdictional disputes.
15. All journeyman and apprentice work tasks
coming under this Agreement shall be assigned only to
employees covered by this Agreement.
(Jt. Ex. 8-Stl.)
According to the record evidence, during the time the initial
Agreement (Jt. Ex. 8-Stl.) was in force from April 1, 1969 to
April 30, 1972, two (2) major problems presented themselves,
one of which had to do with the assignment of bargaining unit
work as set forth in Article I], Paragraph 13 to a class of
"technicians" or other employees not covered by the
Agreement. Although the Council and the Union did not
modify in any way the language of Paragraph 13 in
negotiations for the successor 1972 Agreement (Jt. Ex. 7-Stl.),
they did address the problem nevertheless in side letters they
each sent to their respective constituents about the problem and
incorporating those side letters into the Agreement as
Appendix B. In the letter dated February 25, 1972 sent by the
Council to all of its member companies, the Council
highlighted the problem of mis-assignments referencing them
as occasional and apprised that with respect to this problem the
Council and the Union were in complete agreement that "all
work coming under the UA-PCSC Agreement shall be assigned
C-14
only to members of the United Association." The Council
went on to advise its constituent members that in order to
comply with this commitment that had been made by the
Council’s Negotiating Committee, the companies were to
include in a notice to field management of the Agreement’s
renewal, a statement of policy that it (each company) would
comply with all terms of the 1972 Agreement, without
exception, and with special emphasis on the commitment to
assign work set out in Paragraph 13 to no one other than a
member of the Union in accordance with Paragraph 15, the
language of which was also left unchanged from the initial
agreement.? In complying with the Council’s directive,
Johnson Controls Manager, Field Labor Relations, K.E
Goetschel, sent an undated letter to the appropriate field
managers apprising of the two problems and stating with
respect to the work jurisdiction problem, the following:
We wish to emphasize the fact that it is the Company’s
intent to comply with all the terms of this [1972]
Agreement. We especially wish to reaffirm the policy
of our company that all journeymen and apprentice
work tasks coming under this agreement will be
assigned only to employees covered by this Agreement.
(Jt. Ex. 7-Stl.)
"It was further agreed as noted in this letter that samples
of the notices from each company, as well as those to be sent
by the Union addressing the second problem, that is the
invocation of work stoppages by some local unions to force a
settlement of grievances in violation of Paragraph 57 of the
Agreement (Jt. Ex. 8-Stl.) were to be in the UA’s and
Council’s hands before the successor 1972 Labor Agreement
(Jt. Ex. 7-Stl.) was formally signed.
C - 15
According to the record evidence, work jurisdiction had
become a problem during the term of the initial Agreement (Jt.
Ex. 8-Stl.) as a result of a transition that was taking place
relative to the type of work the companies in the Pneumatic
Control Systems industry was expanding into im response to
changing economic conditions. Specifically, in response to
declining work in the construction industry, the pneumatic
control companies began competing with mechanical contractor
companies for the service and maintenance work on heating,
air conditioning, refrigeration, and other mechanical systems.
According to the Union, part of this new work entailed
scheduled periodic routine preventive service and maintenance
of HVAC (heating, ventilation, air conditioning) equipment,
including refrigeration and other mechanical systems which
was provided as a result of prepaid service and maintenance
contracts sold to customers. The record evidence reflects that
in branching out into this type of work, the pneumatic control
companies put themselves into direct competition with
companies either members of or associated with a
multi-employer group known as the Mechanical Contractors
Association, hereinafter Association or MCA, which, like the
Council, were party to a nationwide collective bargaining
agreement with the Union, known as the National Mechanical
Equipment Service Agreement. A review of the scope of work
performed by companies signatory to the MCA Agreement,
reflects that included as part of mechanical service and
maintenance work performed on a contract basis are such tasks
as cleaning and adjusting which are deemed to constitute the
work known as preventive or routine maintenance (Jt. Ex.
4-Stl.).
M. Eddie Moore, Assistant General President of the Union,
testified that he first became involved in negotiations for the
Master Pneumatic Control Agreement in 1976 and it was at
this negotiation he learned that in agreeing to language changes
C - 16
in the Work Jurisdiction clause, Paragraph 13, in the National
negotiations for the 1974 Master Agreement, the Union had
facilitated full-blown entry for the pneumatic companies into
the business of mechanical equipment service and maintenance.
The clause as rewritten reads as follows:
ARTICLE Il
TRADE AND WORK SDICTION
13. This Agreement covers the rates of pay, hours,
and working conditions of all jourmeymen and
apprentices employed by the Employer doing plumbing
and pipe fitting as related to the installation, service,
and maintenance of all pneumatic control or other
piping systems, and component parts thereof, including
fabrication, assembling, erection, installation,
dismantling, repairing, reconditioning, adjusting,
altering, and servicing of said pneumatic control or
other piping systems, and the handling, unloading,
distributing, reloading, tying on, and hoisting of all
piping materials, appurtenances, and equipment used in
connection with said pneumatic control or other piping
systems by any method, including all hangers and
supports of every description, and all other work
included in the trade jurisdictional claims of the United
Association.
(Jt. Ex. 6-Stl.)
Even though there was no specific reference to the work of
preventive maintenance in connection with servicing
mechanical systems, nonetheless, Moore asserted the Union
gained all work of maintenance, including preventive
maintenance, in agreeing to the revisions made in the language
of Paragraph 13. Specifically, Moore explained, the work of
preventive maintenance accrued unto the Union’s jurisdiction
C-17
through the three added references in the language of
Paragraph 13 that declared, "or other piping" systems, which
he asserted meant mechanical equipment.’ Moore testified that
at the time the 1974 National Agreement (Jt. Ex. 6-Stl.) was
consummated, he was Business Manager of Local 602 in
Washington, D.C. and he recalled receiving an instruction from
the UA that pneumatic control companies could now go into
the service work of refrigeration, air conditioning, and heating.
The record evidence reflects that following the conclusion of
the negotiations for the 1974 National Agreement, the
incumbent UA General President, Martin J. Ward, by letter
dated January 8, 1975 (Un. Ex. 3-Stl.), apprised all Local
Union Business Representatives, among others, of the
following, among other things:
During the negotiation of this Agreement, it was fully
understood and agreed by both the United Association
and the Pneumatic Control Systems Council that the
terms of this Agreement cover plumbing and pipe
fitting on pneumatic controls, refrigeration equipment,
industrial piping, pneumatic tube systems, and other
piping or plumbing work performed by the Pneumatic
*The Arbitrator takes judicial notice of the fact that in its
post-hearing brief (p. 10), the Employer’s position with respect
to any pertinent comparisons between the 1972 and 1974
National Agreements was that the work jurisdiction clauses
(Article II, Paragraph 13) remained unchanged in pertinent
part. It appears, therefore, that the Employer does not attach
any significance to the added reference of "or other piping"
systems in the 1974 work jurisdiction clause, whereas the
Union attaches a great deal of significance to the added
language.
C- 18
Control Contractors. Paragraph 13 has been modified
to clarify and avoid any misunderstanding.
* * * *
The United Association and the Pneumatic Control
Systems Council have entered into this Agreement in
good faith to protect the work of the United
Association and to meet business requirements of the
Pneumatic Control Industry. * * *
(Un. Ex. 3 - Stl.)
According to Joseph Shallbetter, Operations Manager of the
Company’s Peoria Branch, at least with respect to the Central
Illinois area serviced by members of the eight (8) Union
Locals who have an interest in this case, the limited amount of
preventive maintenance work that existed in the period
between 1974 and 1976 was performed by UA mechanics,
meaning journeymen and apprentice plumbers.
Moore testified that in and around the same time the Union
negotiated the Master Agreement in 1974 for the Pneumatic
Control Industry, it also negotiated the Master Agreement in
the Mechanical Equipment Industry. In the latter negotiations,
Moore related the Union and the Mechanical Contractors
agreed to add a new job classification known as Tradesman
and that employees in this classification would perform all the
tasks associated with the work of preventive maintenance, such
as oiling and greasing and other such duties. Moore noted that
even though Tradesman was a bargaining unit job, the pay for
such position, relative to skilled journeymen and apprentice
plumbers, was substantially lower, given the unskilled nature
of the job. Moore explained that, in having reserved the work
of preventive maintenance exclusively to journeymen and
Se hase gp ut vena or?
C-19
apprentice plumbers under the Pneumatic Control Industry
Master Agreement, while at the same time negotiating a
separate lower paid classification of Tradesman to perform the
very same preventive maintenance work under the Mechanical
Equipment Industry Master Agreement, the resuit was that in
bidding for service contracts, the companies in the Mechanical
Contractors Association gained a competitive edge over the
companies in the Pneumatic Controls Industry. According to
Moore, who was a participant in the national negotiations for
the 1976 Master Agreement in the Pneumatic Control Industry,
this competitive edge by the companies in the Mechanical
Equipment Industry was viewed as a source of consternation
and a problem that needed to be confronted in bargaining for
the ‘successor agreement to the 1974 Master Agreement.
According to Moore, the Parties, in seeking to level the
competitive playing field between the companies in the two
industries, agreed to limit the scope of preventive maintenance
work performed by the more highly paid skilled journeymen
and apprentice plumbers so as to allow the companies to hire
less skilled lower paid non-bargaining unit personnel to
perform the bulk of the preventive maintenance work.* Moore
explained that this change was accomplished by adding an
entirely new section to Paragraph 13 of Article II that
specifically addressed the work of mechanical equipment
service and maintenance and delineated the individual tasks
‘It is noted that in ceding the bulk of the preventive
maintenance work to lower paid personnel, the companies in
the Pneumatic Controls Industry were enabled to compete
better in the bidding process for scheduled service and
maintenance contracts against companies in the Mechanical
Equipment Industry who had on their payrolls employees in
the lower paid classification of Tradesmen who performed such
work.
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C - 20
comprising this work. Moore noted that the first section which
had previously constituted the whole of Paragraph 13 in the
previous 1974 Master Agreement (Jt. Ex. 6 - Stl.) was left
unchanged. The new section of Paragraph 13 denoted in the
1976 Master Agreement (Jt. Ex. 5 - Stl.) as 13(2) read, in
whole, as follows:
(2) The following mechanical equipment service
and maintenance work tasks are included in this
Agreement: repair and replacement of oil burners,
boilers, boiler water feeders, low water cut offs, traps,
strainers, valves, pumps, heating coils, interchangers,
and converters of steam or hot water heating systems;
the repair and replacement of cooling coils,
compressors, condensers, evaporators, interchangers,
and cooling towers of refrigeration systems including
the replacement of parts, evacuation, and recharging of
refrigeration equipment, and other repairs required to
make unit and/or equipment operational, belt
adjustment, oiling, greasing and cleaning of equipment
when incidental to or part of the repair or replacement.
Moore explained that the language in the last line of this
section referencing, "incidental to or part of the repair or
replacement" was the language that restricted the scope of
preventive maintenance work such as belt adjustment, oiling,
greasing and cleaning of equipment that had previously been
within the exclusive jurisdiction of the bargaining unit
journeymen and apprentice plumber employees.°
‘Moore related that the new section of Paragraph 13 had
come about in response to a proposal advanced by the Council
and that UA Assistant General President, Gene Bradshaw,
(continued...)
C - 21
In a letter dated April 26, 1977 to All Business Representatives
of Local Unions, among other UA officials (Un. Ex. 4 - Stl.),
UA General President, Martin J. Ward, in advising of the
changes made in the 1976 Master Agreement stated the
following with respect to the Trade and Work- Jurisdiction
clause, that is, specifically, with respect to the newly added
section of Paragraph 13.
Additional clarification as to work assignments on
certain types of Mechanical Equipment Service has
been added to this Article which changes will require
a transition period to accomplish same and we seek
your cooperation in this matter. (Un. Ex. 4 - Stl.).°
*(...continued)
functioning as the Chairman of the Union bargaining
committee, in agreeing with the new section, relinquished the
work of preventive maintenance, but not totally. According to
Moore, Bradshaw’s prime example, with respect to this new
demarcation in work jurisdiction between bargaining and
non-bargaining unit work as it related to the performance of
preventive maintenance work, was that if a company had a
contract to change one thousand (1,000) filters in an office
building, such work could be performed by a non-bargaining
unit employee, but that if such a filter change was required
while a UA Mechanic (Journeyman or Apprentice Plumber)
was performing the work of repair, replacement, et cetera, then
the duty of making the filter change, which otherwise
constituted preventive maintenance type work, was within the
work jurisdiction of the bargaining unit.
‘In its post-hearing brief, specifically in footnote 12, the
Employer asserted that in 1977, the Union leadership explained
(continued...)
xe eS 2
dina a Brae bated
C -22
Whereas the Union asserts it ceded what might be referred to
as the non-incidental preventive maintenance work to
non-bargaining unit employees under the language of the new
second section of Paragraph 13 in the 1976 Master Agreement
(Jt. Ex. 5-Stl.), the Employer asserts the opposite, stating that
this new second section added to the work jurisdiction of the
bargaining unit by enumerating a number of specific
tasks/duties and that, among these tasks/duties were belt
adjustment, oiling, greasing and cleaning of equipment when
those tasks/duties were incidental to or part of the repair or
replacement. The Employer further asserts that these
tasks/duties fell within the exclusive jurisdiction of the
bargaining unit only when they were "incidental to" repair or
replacement of parts and further, that said tasks/duties were not
considered "service and maintenance” tasks for had they been
so considered, "incidental to" language would necessarily have
been rendered redundant. The Employer maintained there is
no evidence to support a claim that the tasks/duties falling
under the rubric of preventive maintenance were made the
exclusive work of the bargaining unit under the terms of the
1974 Master Agreement (Jt. Ex. 6 - Stl.). To the contrary, the
Employer asserts that non-bargaining unit employees
performed preventive maintenance work before 1976, citing as
support, the testimony of Council Member, Larry Smith, who
°(...continued)
to their membership and local officials that the new 1976-79
Council’s work jurisdiction agreement "added" "work
requirements on certain types of Mechanical Equipment service
..." If the Employer is basing this observation on the Union’s
letter dated April 26, 1977 (Un. Ex. 4 - Stl.), it appears that
the Employer has mischaracterized what the letter stated as the
term "added" had reference to additional clarification regarding
work assignments and not work requirements.
Aan PT eh DURE LPS LO LIAG PFOA RE PTA eres Looe iat wt ie
ith.
TEARS ens -
Vie SERA ON FAG NRE No
PREPARE UPSET
7" ~
C - 23
drafted the "incidental to" language in negotiations for the
1976 Master Agreement (Jt. Ex. 5 - Stl.). Smith testified that
in these negotiations, the Union proposed to add the UA Job
Classification of Tradesman into the Master Agreement (PCSC
Agreement), but that the Council rejected this proposal. Smith
testified that the thrust of the "incidental to" language was to
grant the UA jurisdiction over the work specifically referenced,
preceding the words, "incidental to", namely, belt adjustment,
oiling, greasing and cleaning of equipment. Smith testified he
had worked for Honeywell, a Council company member, for
thirty (30) years and that over the years prior to 1989,
Honeywell had utilized non-bargaining unit employees to
perform work characterized as preventive maintenance, more
specifically, work not involving repairing or replacing, but
rather work involving such tasks/duties as changing filters and
belts. Smith, in his testimony, took issue with the intent of the
language "or other piping" systems added to Paragraph 13 in
the 1974 Master Agreement as conveyed by the Union,
recalling this had to do with the fact that some of the signatory
companies were in the sprinkler business, and that the language
insured that these companies would be able to obtain the
necessary labor to perform this work, and that it was not for
the purpose of UA gaining work jurisdiction over mechanical
equipment service and maintenance work. Smith conceded
that, notwithstanding the "incidental to" language, in some
cases UA Mechanics were performing both the "incidental to"
work and the same tasks/duties of preventive maintenance that
fell in the opposite category of non-incidental preventive
maintenance work. Smith averred that the performance of
such non-incidental preventive maintenance work by UA
Mechanics in some cases did not arise out of any work
jurisdiction language contained in the 1974 Master Agreement,
but rather it came about as a matter of specific work
assignments.
C - 24
Eddie Moore testified that after the 1976 Master Agreement
(Jt. Ex. 5 - Stl.) went into effect, two major problems arose,
to-wit: (1) numerous complaints were relayed by the local
unions that non-bargaining unit employees known at Johnson
Controls as PMI’s, an acronym for Preventive Maintenance
Inspectors, were performing tasks/duties beyond the scope of
preventive maintenance work; and (2) numerous complaints by
the competitor companies in the Mechanical Contractors
Association party to the National Mechanical Equipment
Service and Maintenance Agreement that by their use of
non-bargaining unit employees (at Johnson, PMI’s and at
Honeywell, Mech. Reps.) to perform duties beyond preventive
maintenance, the pneumatic companies were bidding for
service contracts on the basis of cheaper labor costs and,
therefore, they were beating them out for these contracts. In
effect, the mechanical contractor companies charged there
existed a state of unfair competition. For reasons not disclosed
in the voluminous record evidence submitted in this instant
case, the Council and the Union did not act to remedy either
or both problems through the bargaining of a successor
agreement to the 1976 Master Agreement until 1986.’
According to Moore, the Union, in its negotiation for the 1986
Master Agreement (Jt. Ex. 3 - Stl.) attempted to address the
problems arising from the complaints by its local unions and
the mechanical contractor companies by expanding the
"Like the predecessor master agreements in 1974, 1972,
and 1969, the 1976 Agreement in the Duration and
Termination clause (Article XX) provided that the Agreement
would, after its date certain of termination, here October 31,
1979, continue from year to year thereafter unless notice of
termination or modification was given in writing by either
party to the other party, sixty (60) days prior to each
anniversary date of October 31.
C-25
tasks/duties included in the second section of Paragraph 13.
Moore related the Union was successful in adding the
following work to its work jurisdiction under Paragraph 13(2).
l. boiler pressure safeties, fuel valves, gas pressure
regulators, and flow control valves;
y low pressure safeties, high pressure safeties, oil
pressure safeties, expansion valves and liquid
line solenoid valves; and
3. other incidental repairs required to make such
mechanical systems and/or equipment
operational.®
In a letter dated October 15, 1986 to All Business
Representatives of local unions among other UA officials (Un.
Ex. 5 - Stl.), UA General President, Marvin J. Boede apprised
of the changes that were made in the 1986 Master Agreement
(Jt. Ex. 3 - Stl.) stating the following with regard to Paragraph
13(2).
Paragraph 13(2) defines the scope of service and
maintenance work to include devices having both piped
connections to system media piping and control
terminations.
“Additionally, a modification was made to the existing
language by inserting the word "such" before equipment in the
line that referenced preventive maintenance work so that the
line now read, "belt adjustment, oiling, greasing and cleaning
of such equipment when incidental to or part of the repair or
replacement."
C - 26
Additionally, Boede apprised that a new third section had been
added to Paragraph 13 designated 13(3) that provided for the
expedited handling of unresolved jurisdictional disagreements
that might arise with respect to the agreement. This third
section read as follows:
(3) Any dispute over the meaning and interpretation
of paragraph 13 shall be immediately submitted
to United Association representatives of the
General Office on the one hand, and the
Secretary of Labor Relations Committee of the
Council on the other (per paragraph 51, Step 2).
With the exception that if not settled within
three (3) working days, the grievance shall be
reduced to writing and submitted to Arbitration
as set forth in Steps 3 and 4 of Paragraph 51 of
the Agreement.”
*It is noted that not since the successor 1972 Master
Agreement (Jt. Ex. 7 - Stl.) to the initial 1969 Master
Agreement (Jt. Ex. 8 - Stl.) had the Council and the Union
provided language in the Master Agreement under Article II to
address the resolution of jurisdictional claims. However, the
language in the 1986 Master Agreement differed from the
language in the two predecessor agreements in that it made
available the grievance procedure to handle claims arising over
the meaning and interpretation, specifically of Paragraph 13,
whereas in the 1969 and 1972 Master Agreements
jurisdictional disputes only of the type involving other building
trades organizations, as well as the assignment of work was to
be settled and adjusted in accordance with the procedure
established by the National Joint Board for the Settlement of
Jurisdictional Disputes or any successor agency of the Building
and Construction Trades Department.
BEA a Bde ee al A le i all Sr hiahS elai
C-27
According to Moore, the changes that were made to Paragraph
13(2) and the addition of Paragraph 13(3) in the 1986 Master
Agreement (Jt. Ex. 3 - Stl.) did not correct the problems
complained of by the local unions and the mechanical
contractor companies and, as a result, the complaints continued
to increase. The record evidence reflects that one such
complaint came from UA Local 597 in Chicago. In a letter
dated September 23, 1987, (Un. Ex. 16 - Stl.), Local 597
Business Representative Tom Cade apprised UA International
Representative Francis J. Coyne that Johnson Controls "wishes
to broaden the duties of the PMI employees by the following
to do tube work on boilers (such as cleaning) also to install
condensers and refrigeration equipment and to take reading of
amperage of electric motors and to carry gauges to take
readings on refrigeration equipment as to whether any
additional refrigerant would be required ..." Cade stated he felt
that if there was not a clarification of the intent of Paragraph
13(2), the situation would possibly "mushroom" and could be
just the tip of the iceberg. Cade requested a reply as soon as
possible, explaining that a member had called on September
22, 1987 to apprise that such work by a PMI was being
implemented on a Sears account, and that the PMI was
working on the job. The record evidence reflects that in
response to Cade’s letter, UA General President Marvin Boede
met with Ken E. Goetschel, Executive Secretary of the
Council, to discuss the PMI situation for the purpose of
clarifying the matter. In a letter dated November 24, 1987
(Un. Ex. 17 - Stl.), Boede apprised Local 597 Business
Manager, Francis X. McCartin, that he met with Goetschel on
November 16, 1987, and that he and Goetschel reviewed the
work scope in question as defined under Paragraph 13(2) of
the 1986 Master Agreement (Jt. Ex. 3 - Stl.). Boede further
apprised that Goetschel assured him that work assignments
would be made in accordance with the Agreement and that
Johnson Controls had no intention to expand the PMI’s work
ie tk ne tee ew
C - 28
tasks into the areas mentioned in Cade’s letter. Boede went on
to apprise that since its inception in the 1976 Master
Agreement, many questions had been raised concerning the
intent of Paragraph 13(2) and that 13(2) was revised in 1986
to clarify the intent of the phrase, "other incidental repairs
required to make such unit and/or equipment operational."
Boede apprised that according to a Memo of Understanding
signed August 12, 1986, the intent of the Work Scope of the
1986 Master Agreement was that work covered is to be
performed by UA employees defining the scope of service and
maintenance to include devices having both piped connections
to the system and control terminations. Boede continued, it
was agreed that, in addition to the work task listed in the
Agreement (Jt. Ex. 3 - Stl.), all work tasks on the boiler
devices and refrigeration devices are intended to be included
in the Agreement. Further, Boede apprised, Article II must be
read in its entirety, referencing the phrase in Paragraph 13(2),
"all other work included in the trade jurisdictional claims of
the United Association." Boede then went on to state that
certain scheduled maintenance inspections and work tasks have
been accepted as the work assignments of PMI’s, provided
they are not a service call and are not incidental to or a part of
a repair or replacement. Boede identified the accepted work
assignments of PMIs to be as follows:
Belt adjustment; oiling and greasing of pumps and
motors, logging and tagging of equipment for proper
lubrication; cleaning of equipment and replacement of
air filters; water treatment sampling; [and visual
systems inspection and the reporting of repairs ...].
Boede concluded by advising McCartin that PMI’s could be
organized and be brought into the bargaining unit.
C - 29
The record evidence reflects that other formal complaints were
received by the UA during the term of the 1986 Master
Agreement regarding work assignments made to non-Union
personnel employed at Johnson Controls For example, James
H. Young, Business Agent of Local 189 in Columbus, Ohio,
in a letter dated August 18, 1988 (Co. Ex. 5 - Stl.) to UA
International Representative Donald F. McNamara, requested
McNamara’s assistance concerning disputed work assignments
made by Johnson Controls to non-Union personnel. Young
identified the work in question to be filter-changing, cleaning
of equipment and various other duties at several locations in
the Columbus area Young charged that, in his view, such work
assignments constituted a violation of Paragraph 13(2) of the
1986 Master Agreement (Jt. Ex. 3 - Stl.). In turn, UA General
President Boede forwarded this complaint to Goetschel at the
Council and in a letter dated August 29, 1988, Goetschel
apprised Boede, among other things, that "Local 189 should be
reminded that Johnson Controls and other PCSC members are
not in violation of the NPCSC [Agreement] if such preventive
maintenance tasks are not part of repair or replacement and are
performed by personnel other than UA members." As another
example, Local 562 Business Manager Donald Devitt, by letter
dated August 29, 1988 (Un. Ex. 8 - Stl.), apprised Rick
Tinucci, Johnson Controls’ St. Louis Branch Manager that it
had come to the Local’s attention the Company had hired a
man to perform service work and that this represented a
violation of Article VIII of the Master Agreement. Devitt
concluded the letter by stating the union expected the problem
to be rectified immediately. By letter dated August 31, 1988
(Un. Ex. 8 - Stl.), Tinucci responded to Devitt’s complaint and
allegation of a Contract violation by apprising Devitt of the
following:
Our new employee’s job duties include belt adjusting,
oiling, greasing and cleaning as allowed by Article II,
C - 30
Paragraph 13 of the UA National Pneumatic Control
Systems Agreement. We in no way intend to use this
employee to perform work that falls within Local 562
jurisdiction.
The St. Louis Branch intends to honor the current and
any future National Agreements to which we are
signatory.
The record evidence reflects that, notwithstanding Tinucci’s
response, Devitt perceived a continuing problem which
culminated in a request to UA General President Boede by
letter dated October 11, 1988 (Un. Ex. 8 - Stl.) to arbitrate
what Devitt characterized as a "serious problem in the St.
Louis area." In this letter, Devitt apprised Boede that when
the problem first occurred, the local union Business
Representative Jim O’ Mara met with Johnson Controls’ official
Ken McClendon and informed McClendon of the Contract
violation and, at the same time, offered the Company the use
of a tradesman to perform the disputed work, but that
McClendon declined the offer, informing O’Mara that the
Company did not want to set up another category. Devitt
apprised Boede that one year previous to this meeting, the
local union invited all contractors to a meeting held at the
union hall of which Johnson Controls was an attendee, and that
at this meeting the union fully explained how the contractors
could use Tradesmen to be competitive. Devitt apprised Boede
that the union had a Tradesman Program that had been in
effect for over a year, and that presently, there were over 30
Tradesmen working in the industry. Devitt then went on to
detail several violations concluding that between Johnson and
Honeywell, [their use of non-union employees to perform
C - 31
so-called PMI work] was unfair to the union’s other service
contractors. '°
The record evidence reflects that while the PSCS 1986 Master
Agreement was still in effect, the UA negotiated a successor
National Mechanical Equipment Service and Maintenance
Agreement with the MCA and its Service and Maintenance
Bureau (SMB) effective August 16, 1988 (Co. Ex. 17 - Stl.).
Article VIII, the Classification of Employees clause, under
Paragraph 25, provided the following with respect to
Maintenance Tradesmen:
25. | Maintenance Tradesmen must be qualified to
perform and shall be allowed to perform the work
listed below:
All routine maintenance and _ inspections
regardless of size or location of the mechanical
equipment being inspected or maintained, where
this work is done as a periodic routine service,
inspection and maintenance procedure by the
Employer, such as:
a) Filter changing and maintenance thereof
b) Oil and greasing
c) Belt adjusting or replacement
The record evidence before this Arbitrator contains
similar complaints by other UA locals concerning Honeywell’s
use of non-union personnel to perform work the UA claimed
fell within its work jurisdiction (See Co. Ex. 18 - Stl. and Co.
Ex. 16 - Stl.).
C - 32
d) Cleaning of cooling towers, coils,
evaporator and condenser tubes and
water treatment
e) General housekeeping
f) Delivery and truck driving of parts or
equipment trucks
g) Systems operation under contract with
customer
h) in an area where a problem exists with
non-UA competition, the assignment of
tradesmen duties may be adjusted to
meet local conditions
i) Cleaning and routine maintenance of
solar energy equipment and HVAC
power electronics control devices and
the electronic side of building
automation systems
(Co. Ex. 17 - Stl.)
Moore asserted in his testimony that it was in response to these
complaints that centered around Johnson’s use of PMIs and
Honeywell’s use of Mech Reps that prompted the Union to
reopen the Master Agreement in 1988. Moore testified that in
the Union’s view, PMIs were the main issue in the 1988
negotiations. According to Moore, it was the Union’s
objective to eliminate PMIs and that this issue was so "big"
that the Union was willing to go so far as to give up the
Master Agreement.'' Meeting notes taken by the UA at the
"Moore explained that in other situations the Union
unilaterally develops a national agreement, and it is up to the
individual contractors as to whether they sign and become a
(continued...)
PP PS Te ty Fo eae YO
pb ods dinth ie? «so ne ae ee Seg is Btory
C - 33
first bargaining session held on October 6, 1988 (Un. Ex. 19
- Stl.) reflect the following with regard to the Union’s intent
in these negotiations:!”
Chairman Moore opened the meeting and explained the
history of UA-NCA negotiations and why the UA has
requested to reopen the Agreement. The main reason
being the difference between the PCSA and the
NMES&M Agreement, and the UA does not want
different agreements and working conditions for
refrigeration and air-conditioning service and
maintenance work.
At the second bargaining session held November 1, 1988, the
UA Meeting Notes (Un. Ex. 20 - Stl.) reflect the following
with respect to the Union’s position regarding Paragraph 13(2):
"(...continued)
party to the agreement. In other words, there is no negotiation
that takes place with respect to these national agreements and
in this regard, the situation involving the Pneumatic Council is
different.
"According to the record evidence, the Council and the
UA met a total of ten (10) times in bargaining sessions
beginning October 6, 1988 and ending March 22, 1989. The
specific dates of these bargaining sessions were:
October 6, 1988 January 12, 1989
November 1, 1988 February 7, 1989
November 15, 1988 February 8, 1989
December 13, 1988 March 21, 1989
January 11, 1989 March 22, 1989
——
C - 34
After a complete discussion of all proposals, Mr.
Moore let the PCSC know that the UA is taking a very
strong stand on Article II, Paragraph 13(2), our work
jurisdiction, in particular, belt adjustment, oiling,
greasing, etc. If we cannot get it resolved, we will
have to reassess our position on whether we want the
Agreement or not. Mr. Tarkowski [Chairman of the
Council’s bargaining committee] explained they would
have to go to their Executive Committee on this before
they could move. He asked about the rest of the UA
proposals and Mr. Moore indicated we could clear them
up in short order if we come to agreement on 13(2).
In its first proposal to the Council, the record evidence reflects
the UA attempted to address its objectives regarding work
jurisdiction in two ways, to-wit: (1) It proposed adding two
new paragraphs to the preamble section, Parties to the
Agreement, the thrust of which was to clarify the fact the
signatory companies were in the business of service and
maintenance of mechanical equipment and to specifically state
that among other work reserved to UA employees was the
work of preventive maintenance; and (2) It proposed adding
three new sub-sections to Paragraph 13, all pertaining to an
enumeration of work tasks/duties that were covered by the
Agreement with one of these new sub-sections detailing the
particular tasks/duties falling under the category of work
referenced routine maintenance and inspection (Co. Ex. 1 -
Stl.).
At the third negotiating meeting held November 15, 1988, the
UA Meeting Notes (Un. Ex. 21 - Stl.) reflect that with respect
to the Union’s proposed new sub-section 4 of Paragraph 13
referencing specific tasks/duties of routine maintenance and
inspection work, a discussion occurred centering about the use
of tradesmen or apprentices on belts, oiling and greasing, etc.
C - 35
and indicating that the contractors see a problem with their
companies understanding or going along with this.
The UA Meeting Notes of the fourth bargaining session held
December 13, 1988 (Un. Ex. 22 - Stl.) reflect that prior to
getting into the negotiations the Council wanted to express a
number of points with regard to the UA’s proposal on
Paragraph 13. Two of the six (6) points noted, the ones most
pertinent to the case at bar were the following:
« * * *
3) Expanding UA jurisdiction causes problems for
both company and union, competitiveness and
job loss.
5) Routine Maintenance - they can’t ask their
salaried people to join union and if fitters do
work, cost goes up (Pipefitters don’t want
menial work and UA can’t supply tradesmen).
The notes further reflect that Moore responded to all six (6)
points stating, among other things, that the work the Council
was worried about was traditional work of the UA that had
been performed for the last 75 years, whereas the member
companies had only been in the business (referring to
mechanical equipment service and maintenance) for the last 14
years (since about 1974). The notes reflect a continuing
dialogue occurred between the Council and UA with respect to
Paragraph 13 at this meeting and that, whereas the UA put
forth several options such as, for example, eliminating or
rewriting Article XVIII, the No Strike, No Lockout clause to
allow the Union to picket for organizing PMIs (tech reps) or,
C - 36
in the alternative, to picket when non-union personnel was
performing bargaining unit work, the Council did not produce
any concrete proposals of its own to address the issues raised
in connection with Paragraph 13.
The UA Notes of the fifth bargaining session (Un. Ex. 23 -
Stl.), held January 11, 1989, reflect that the Council informed
the Union it was their estimate that there were between two to
three hundred salaried employees throughout the country that
were performing PMI type work and then read a list of duties
the Council viewed that the salaried employees could perform
without being in violation of the Agreement. As characterized
by the UA in its notes, this list was extremely long and seemed
to cover everything but installation and replacement of
pneumatic or mechanical equipment. The Council declined to
give a copy of this list of duties to the Union according to the
UA notes. Additionally, the UA recorded in its notes that a
lengthy discussion ensued regarding the various problems the
Union faced with respect to this Agreement, that the Council
acknowledged its understanding of these problems, but that,
nevertheless, the Council did not have any proposals to present
to the Union. At this juncture, the UA presented to the
Council a complete Agreement as its second proposal (Co. Ex.
2 -Stl.) and briefly gave an explanation of the most important
differences between the proposed agreement and the existing
agreement (Jt. Ex. 3 - Stl.). A comparison of the two
agreements relevant to the work jurisdiction issue reveals the
following changes:
1) Paragraph 6 of the Preamble section, Parties to
the Agreement, was restated.
2)
C - 37
a) 1986-88 Agreement (Jt. Ex. 3 - Stl.)
Paragraph 6 -
WHEREAS, the Employer is engaged in
pneumatic control systems, industry throughout
the United States and is known as a National
Pneumatic Control Contractor,’ and in the
performance of such work requires the services
of competent, skilled and qualified journeymen
and apprentices; and
b) UA Proposed Agreement (Co. Ex. 2 -
Stl.)
Paragraph 6 -
WHEREAS, the Employer is engaged in
the plumbing and pipe fitting industry
throughout the United States, and in the
performance of such work requires the services
of competent, skilled and qualified employee,
and
Article I], Paragraphs 13, 14 and 15, the
Trade/Work Jurisdiction clause was redrafted.
a) 1986-88 Agreement
13. (1) This Agreement covers the rates
of pay, hours, and working conditions of all
journeymen and apprentices employed by the
Employer doing plumbing and pipe fitting as
related to the installation, service, and
maintenance of all pneumatic control or other
piping systems, and component parts thereof,
including fabrication, assembling, erection,
C - 38
installation, dismantling, repairing,
reconditioning, adjusting, altering, and servicing
of said pneumatic control or other piping
systems, and the handling, unloading,
distributing, reloading, tying on, and hoisting of
all piping materials, appurtenances, and
equipment used in connection with said
pneumatic control or other piping systems by
any method, including all hangers and supports
of every description, and all other work
included in the trade jurisdictional claims of the
United Association.
(2) The following mechanical equipment
service and maintenance work tasks are
included in this Agreement: Repair and
replacement of oil burners, boilers, boiler water
feeders, low water cut-offs, traps, strainers,
valves, pumps, heating coils, interchangers, and
converters of steam or hot water heating
systems, boiler pressure safeties, fuel valves,
gas pressure regulators, and flow control valves;
the repair and replacement of cooling coils,
compressors, condensers, evaporators,
interchangers, low pressure safeties, high
pressure safeties, oil pressure safeties, expansion
valves, pressure regulators, hot gas bypass
valves and liquid line solenoid valves, and
cooling towers of refrigeration systems
including the replacement of parts, evacuation,
and recharging of refrigeration equipment; belt
adjustment, oiling, greasing and cleaning of
such equipment when incidental to or part of
the repair or replacement; and other incidental
14.
15.
C - 39
repairs required to make such mechanical
systems and/or equipment operational.
(3) Any dispute over the meaning and
interpretation of paragraph 13 shall be
immediately submitted to United Association
representatives of the General Office on the one
hand, and the Secretary of the Labor Relations
Committee of the Council on the other (per
Paragraph 51, Step 2). With the exception that
if not settled within three (3) working days, the
grievance shall be reduced to writing and
submitted to Arbitration as set forth in Steps 3
and 4 of Paragraph 51 of the Agreement.
There shall be no work stoppages because of
jurisdictional disputes.
All journeyman and apprentice work tasks coming
under this Agreement shall be assigned only to
employees covered by this Agreement.
b)
UA Proposed Agreement
(13) 1. This agreement covers the rates of
pay, hours and working conditions of all
employees engaged in the installation, service,
and maintenance of all plumbing and/or pipe
fitting systems including but not limited to
pneumatic controls and mechanical equipment
service and component parts for all of the above
which also includes fabrication, assembling,
erection, installation, dismantling, replacement,
repairing, reconditioning, adjusting, altering,
servicing of all plumbing, and/or pipefitting
C - 40
systems, pneumatic controls, and/or mechanical
equipment service, and handling, unloading,
distributing, reloading, tying-on, and hoisting of
all piping materials, appurtenances and
equipment used in connection to said plumbing
Or piping systems, pneumatic controls, and/or
mechanical equipment service, by any method,
including all hangers and supports of every
description and all other work included in the
trade jurisdictional claims of the United
Association.
2. Any dispute over the meaning
and interpretation of paragraph 13 shall be
immediately submitted to United Association
representatives of the General Office on the one
hand, and the Secretary of the Labor Relations
Committee of the Council on the other, with the
exception that if not settled within three (3)
working days, the grievance shall be reduced to
writing and submitted to arbitration as set forth
in Steps 3 and 4 of paragraph 52 of the
agreement.
3. In recognition of the above work
jurisdictional claims, it is understood that the
assignment of work and settlement of
jurisdiction disputes with other Building Trades
Organizations shall be adjusted in accordance
with the procedures established by the Impartial
Jurisdictional Disputes Board or any successor
agency of the Building and Construction Trades
Department.
C - 41
(14) There shall be no sit-down or work
stoppage by the employees because of
jurisdictional disputes.
(15) All work coming under this agreement
shall be assigned only to employees covered by
this agreement.
3) Addition of an entirely new Article establishing
the Job Classification of Maintenance
Tradesmen
a) UA Proposed Agreement”
ARTICLE X
MAINTENANCE TRADESMEN
36) Maintenance Tradesmen must be qualified to
perform and shall be allowed to perform the
work below:
"It is noted that with but two (2) differences, the proposed
new Article X was virtually identical to Article VIII, Paragraph
25 pertaining to the Job Classification of Maintenance
Tradesmen contained in the 1988 National Mechanical
Equipment Service and Maintenance Agreement (Co. Ex. 17
- Stl.) (see also p. 21 of this Award, Supra). Those two
differences were as follows: (1) In Item i) on the list of
enumerated duties, the proposed agreement added repairing and
eliminated the phrase, and the electronic side of building
automation systems; and (2) the proposed agreement added a
second section to the Article that is not contained in the
Mechanical Master Agreement.
C-42
1. All routine maintenance and inspections
regardless of size or location of the mechanical
equipment being inspected or maintained, where
this work is done as a periodic routine service,
inspections and maintenance procedure by the
Employer, such as:
a. filter changing and maintenance
thereof
b. oil and greasing
c. belt adjusting or replacement
d. cleaning of cooling towers, coils,
evaporator and condenser tubes
and water treatment
e. general housekeeping
f. delivery and truck driving of
parts or equipment trucks
g. systems operations under
contract with customer
h. in an area where a problem
exists with non-union
competition, the assignment of
tradesmen duties may _ be
adjusted, by written agreement to
meet local conditions
1. cleaning, repairing, and routine
maintenance of solar energy
equipment and HVAC power
electronics control devices
ya Where there is no legal service and
maintenance agreement’ establishing a
"Maintenance Tradesmen" classification,
including rate and fringes for such
classification, the basic hourly wage rate for
IERIE aie te cee cece ire ee menT RE RTS OPN eo es TO eNO
C - 43
this classification shall be established at a rate
of 50% of the service and maintenance
journeymen hourly wage. The Employer may
carry an employee with the Tradesmen
classification on a health/welfare plan from an
alternate source, and shall carry said employee
on the UA National Pension Plan. The
Employer shall contribute one (1) dollar per
hour for each hour worked to the Plumbers and
Pipefitters National Pension Fund.
The UA Notes of the sixth bargaining session held on
January 12, 1989 (Un. Ex. 24 - Stl.) reflect that the Council
indicated it had reviewed the Union’s proposed Agreement
(Co. Ex. 2 - Stl.) and that in so doing, it had identified a total
of nineteen (19) changes of which they viewed three (3) as
being major in nature and then requested the Union to provide
an explanation regarding the kind of complaints and problems
it was receiving concerning the non-union PMIs (Techs): In
response, the Union related that complaints came from
Business Managers of local unions claiming that the Master
Agreement undermines other National Agreements and Local
Agreements and complaints came from contractors who
claimed they were rendered non-competitive against Council
contractors. The Union further explained the main problem
was the abuse by Council contractors of the use of PMIs
(Techs) on commercial work and the use of Instrument Techs
on industrial construction and maintenance projects.
According to the UA Notes, the Council and the Union
adjourned after caucusing and agreed to reconvene on February
7, 1989 and to extend the Current Agreement (Jt. Ex. 3 - Stl.)
to February 10, 1989.
In a Memorandum dated January 23, 1989 (Un. Ex. 9 - Stl.),
UA General President Boede apprised all Building Trades
C-44
Local Unions in the United States that the Union was
attempting to negotiate a new National Pneumatic Control
Systems Agreement, and that the crux of the changes proposed
by the Union related to a series of difficulties reported by
many local unions throughout the country concerning the Trade
and Work Jurisdiction provision of the Agreement (Jt. Ex. 3 -
Stl.). Boede further apprised it was the intention of the UA to
do all in its power to reach a fair resolution of the dispute and
continue to have a national agreement which protects and
preserves the work opportunities for the members of the UA.
According to UA Notes of the seventh and eighth bargaining
sessions held on February 7 and 8, 1989 (Un. Ex. 25 - Stl),
the Council opened the negotiations by re-capping where each
side was respectively and stating, among other things that the
UA’s proposal to include the Job Classification of Maintenance
Tradesmen to perform non-skilled work that had been
performed by non-bargaining unit employees for years was a
non-mandatory subject of bargaining, and as such, it refused to
bargain any further with regard to that proposal. The Council
clarified its position, stating its refusal to bargain on the
Maintenance Tradesmen category concerned an expansion of
the bargaining unit but did not extend to bargaining with
respect to the scope of work. The Union responded that it was
not attempting to organize the PMIs (Techs) that what it was
bargaining was the scope of work and that the Council did not
have to use tradesmen unless they wanted to. According to the
UA’s notes, the Union offered to take the new Article on
Maintenance Tradesmen out and leave the [proposed]
agreement as is. With respect to the enumerated duties of the
Tradesmen, the Union offered to put it back into either
C - 45
Paragraph 13(1) or (2) as an exclusion."* At the beginning of
the bargaining session on February 8, 1989, the Council
presented a proposal regarding Paragraph 13(1) and (2) to
which the UA responded it had problems with the proposal,
Stating it felt strongly that the duties listed in the proposed
Paragraph 36 (1), items (a) through (i) was bargaining unit
work with or without the inclusion of a Tradesmen category
and that the Union objected to non-bargaining unit men
performing routine maintenance. Following discussion of
another Council proposal, the Union stated there were a lot of
unsettled problems/questions pertaining mostly to routine
maintenance that the Council and the Union seemed unable:to
resolve and suggested that the existing Agreement (Jt. Ex. 3 -
Stl.) be extended sixty (60) days and a termination date of
April 9, 1989 be set. The Union explained that on April 9th,
the Contractors would have several options, to-wit: they could
sign local or national agreements, such as NCA (extend to
commercial work) or the NMES & M Agreement (Co. Ex. 17
- Stl.); or they could sign a UA developed Independent
Pneumatic Control Systems Agreement; or they could operate
without the UA. The Union agreed to meet in further
bargaining sessions during the sixty (60) day extension, but
declined the Council’s suggestion of submitting the talks to
federal mediation. In response to a Council’s request for the
Union to make a list of what UA tasks should be covered by
the Master Agreement, the Union stated, "inspect, test and
perform preventive maintenance on mechanical systems
(including belt adjustment, oiling, greasing and cleaning of
equipment) from Johnson Controls’ list of SSI Level I duties."
“It appears, based on subsequent reported statements
articulated by the Union, and positions taken in negotiations
that the reference to "exclusion" was incorrect.
C - 46
The Council and the Union agreed to reconvene in bargaining
on March 21 and 22, 1989.
In a Memorandum dated February 13, 1989 (Un. Ex. 10 -
Stl.), UA General President Boede apprised all Building Trades
Local Unions in the United States that bargaining to date had
not resulted in a new national agreement and that a deadline
date of April 9, 1989 had been set as a termination date for the
1986 Master Agreement (Jt. Ex. 3 - Stl.). Boede further
apprised additional negotiation meetings had been scheduled
prior to April 9th, but that in any event, in the interim period,
the UA would develop a new national agreement which would
be available for signing by any contractor presently working
under the existing Master Agreement. Boede advised the local
unions they would be notified in ample time prior to the April
9th deadline date of what action they might have to take to
make sure their members were protected in any transition
period.
As the UA had apprised the Council at the conclusion of the
February 8th bargaining session and its local unions in its
Memorandum of February 13th, it unilaterally developed a new
National Control Systems Agreement (Co. Ex. 8 - Stl. and Un.
Ex. 15 - Stl.) which it distributed to all its Building Trades
Local Unions in the United States (Un. Ex. 14 - Stl.) and to
the Council Member companies (Un. Ex. 13 - Stl.), the
Associate Member companies (Un. Ex. 12 - Stl.) and to the
Independent companies (Un. Ex. 11 - Stl.) by transmittal letter
dated March 6, 1989. In the transmittal letter, of which there
were two versions with but little difference, one to the local
unions and the other to the signatory companies, the Union
apprised that the major differences between the existing Master
Agreement (Jt. Ex. 3 - Stl.) and the developed Agreement (Co.
Ex. 8 - Stl. and Un. Ex. 15 - Stl.) was a deletion of all
references to the "Pneumatic Council," a rewritten work
j
|
‘|
C - 47
jurisdiction clause renumbered as paragraph 8 under Article II
for the purpose of more clearly defining the work jurisdiction
of the UA and establishment of a new grievance procedure.
The new Article II in the developed agreement read as follows:
ARTICLE II
TRADE OR WORK JURISDICTION
(8) l. This agreement covers the rates
of pay, hours and working conditions of all
employees engaged in the installation, service,
and maintenance of all plumbing and/or pipe
fitting systems including but not limited to
pneumatic controls and mechanical equipment
and component parts for all of the above which
also includes fabrication, assembling, erection,
installation, dismantling, replacement, repairing,
reconditioning, adjusting, altering, calibrating,
servicing of all plumbing, and/or pipefitting
Systems, pneumatic controls, and/or mechanical
equipment, and _ handling, unloading,
distributing, reloading, tying-on, and hoisting of
all piping materials, appurtenances and
equipment used in connection to said plumbing
or piping systems, pneumatic controls, and/or
mechanical equipment, by any method,
including all hangers and supports of every
description and all other work included in the
trade jurisdictional claims of the United
Association.
y a Any dispute over the meaning
and interpretation of paragraph 8 shall be
immediately submitted to United Association
C - 48
representatives of the General Office on the one
hand, and the Employer on the other, with the
exception that if not settled within three (3)
working days, the grievance shall be reduced to
writing and submitted to arbitration as set forth
in the grievance and arbitration procedures of
Article XVII.
(9) In recognition of the above work
jurisdictional claims, it is understood that the
assignment of work and _ settlement of
jurisdiction disputes with other Building Trades
organizations shall be adjusted in accordance
with the procedures established by the Impartial
Jurisdictional Disputes Board or any successor
agency of the Building and Construction Trades
Department.
(10) There shall be no sit-down or work
stoppage by the employees because of
jurisdictional disputes.
(11) All work coming under this agreement
shall be assigned only to employees covered by
this agreement.
(Un. Ex. 15 - Stl.)
'°4 comparison between the developed Article II and the
Article I] contained in the 1986 Master Agreement reflects that
) Paragraph 8(1) was an attempt on the part of the UA to merge
Paragraphs 13(1) and (2). In the rewriting, the UA dropped
phrases and added new ones in their place and added two new
(continued...)
C - 49
Subsequent to the distribution of the developed Agreement, the
Council and the Union reconvened negotiations on dates of
March 21 and 22, 1989. According to the UA Notes of these
meetings (Un. Ex. 26 - Stl.), the Council presented a
counterproposal to the Article II contained in the developed
'5(...continued)
functions of "replacement" and "calibrating." The following are
phrases dropped and added:
Dropped: "employed by the Employer doing
plumbing and pipe fitting as related to
the"
Added: “engaged in the"
Dropped: “pneumatic control or other piping
systems"
Added: "plumbing and/or pipe fitting systems
including but not limited to pneumatic
controls and mechanical equipment"
Dropped: "thereof, including"
Added: "for all of the above which also
includes"
Dropped: "said pneumatic control or other piping
systems"
Added: "All plumbing, and/or pipe fitting
systems, pneumatic controls, and/or
mechanical equipment"
It is noted that changes were also effected to the other sections
of Article II as well.
C - 50
Agreement (Un. Ex. 15 - Stl.) This counterproposal reads as
follows:
Replace Paragraph 8(1) with the following:
(8) 1. Subject to subparagraph (2), below, this
Agreement covers the rates of pay, hours and working
conditions of journeymen and apprentices engaged in
the installation, service, and maintenance of all
plumbing and/or pipe fitting systems, including
pneumatic controls and mechanical equipment and
component parts for all of the above which includes
fabrication, assembling, erection, installation,
dismantling, replacement, repairing, reconditioning,
adjusting, altering, calibrating, servicing of all
plumbing (at non-industrial sites) and/or pipefitting
systems, pneumatic controls and/or mechanical
equipment, and handling, unloading, distributing,
reloading, tying-on, and hoisting of all piping materials,
appurtenances and equipment used in connection to said
plumbing or piping systems, pneumatic controls, and/or
mechanical equipment, by any method, including all
hangers and supports of every description and all other
work included within the trade jurisdiction claims of
the United Association.
Replace paragraph 8(2) with the following:
y J Non bargaining unit employees of the
Employer or the Employer’s vendors or
contractors may perform work relating to:
(a) testing, monitoring and diagnosing
performance problems,
(b) electronic controls,
Soo
C-51
(c) computer and communications systems,
(d) work for the purpose of instruction and
training; and work when done on a
scheduled basis (not as incidental to the
work performed pursuant to
subparagraph 1, above), as follows:
(1) Filter changing and maintenance
: thereof
(2) Oiling and greasing
(3) Belt adjusting or replacement
(4) Cleaning of cooling towers,
coils, evaporators and condenser
: tubes
(5) Testing and monitoring water
: treatment systems
(6) General housekeeping or
cosmetic work
(7) Delivery and driving of parts
and equipment delivery trucks
(8) Systems operation § under
contracts with customers
Change designation for paragraph 8(2) to paragraph
8(3). Also replace word ’employer’ with ’Secretary of
Labor Relations Committee of the Council.’
) In Paragraph 10, remove the words ’by the employees’.
(Un. Ex. 18 - Stl.)
According to the UA Notes, after reviewing the Council’s
counterproposal, the Union stated its opposition mainly to
Paragraph 8(1) and 8(2) and took the position that under the
Interim Agreement effective April 9, 1989, the work in 8(2)
Dich Listen «nina ions alo ® a databases rine eae
C - 52
would be performed by the UA. The Council stated it felt it
was unfair of the UA to attempt to eliminate the PMI’s (Tech
Reps) after 13 years of using them and that the Union
responded its effort to do so was as a result of abuse of using
Tech Reps on routine maintenance. The notes further reflect
that the Council agreed to take its proposed 8(1) language as
amended to replace sections 1 and 2 of Paragraph 13 in the
1986 Agreement. The final Agreement with respect to Article
II is reflected in the successor 1989 Master Agreement (Jt. Ex.
IP) which reads as follows:
a This Agreement covers the rates of pay,
hours, and working conditions of journeymen and
apprentices engaged in the installation, service, and
maintenance of all plumbing and/or pipe fitting
systems, including pneumatic controls and mechanical
equipment and component parts for all of the above
which also includes fabrication, assembling, erection,
installation, dismantling, replacement, repairing,
reconditioning, adjusting, altering, calibrating, servicing
of all plumbing and/or pipe fitting systems, pneumatic
controls and/or mechanical equipment, and handling,
unloading, distributing, reloading, tying on, and
hoisting of all piping materials, appurtenances, and
equipment used in connection to said plumbing or
piping systems, pneumatic controls and/or mechanical
equipment, by any method, including all hangers and
supports of every description, and all other work
included in the trade jurisdictional claims of the United
Association.
(2) Any dispute over the meaning and
interpretation of paragraph 13 shall be immediately
submitted to United Association representatives of the
General Office on the one hand, and the Secretary of
C - 53
the Labor Relations Committee of the Council on the
other (per Paragraph 51, Step 2). With the exception
that if not settled within three (3) working days, the
grievance shall be reduced to writing and submitted to
Arbitration as set forth in Steps 3 and 4 of Paragraph
51 of the Agreement.
14. There shall be no work stoppages because of
jurisdictional disputes.
15. All journeyman and apprentice work tasks
coming under this Agreement shall be assigned only to
employees covered by this Agreement.
(Jt. Ex. IP)
In a letter dated May 19, 1989, (Un. Ex. 6 - Stl.), UA General
President apprised all Building Trades Local Unions in the
United States that a new National Pneumatic Control Systems
Council Agreement had been negotiated effective March 31,
1989 and that the only change in the Agreement was to Article
II, specifically that Paragraph 13(2) had been eliminated and
a new Paragraph 13 agreed to. Boede noted that the word
calibrating had been added to the wording and that the changes
made in the Paragraph were intended to eliminate confusion
and to strengthen the claims of its rightful jurisdiction.
A comparison of the new Paragraph 13 in the 1989 Agreement
(Jt. Ex. IP) with paragraph 8(1) promulgated by the Union in
its developed Agreement (Un. Ex. 15 - Stl.) reflects the two
paragraphs are virtually identical. The only differences are
that in the developed Agreement, the word employees was
used instead of journeymen and apprentices and that in the
new Paragraph 13, journeymen and apprentices was restored to
the language in place of employees and the phrase "but not
C - 54
limited to" that appeared in Paragraph 8(1) line 4 after the
word "including" but before the word "pneumatic" was deleted.
Moore testified that agreement was reached on Paragraph 13
the last day of negotiations because the Council had accepted
virtually all of the language that constituted Paragraph 8(1) in
the developed Agreement (Un. Ex. 15 - Stl.) and because the
Council agreed to drop Paragraph 8(2) from _ its
counterproposal [Un. Ex. 18 - Stl.] which set forth specific
tasks/duties that constituted work that could be performed by
non-bargaining unit employees. According to Moore, the
Union took the position in negotiations that with the exception
of three (3) duties listed, the remaining work set out in the
proposed Paragraph 8(2) belonged within the UA’s
jurisdiction." Moore recalled that in agreeing to drop its
proposed Paragraph 8(2), Jim Tarkowski, Manager for Human
Resources at Johnson Controls and Chairman of the Council’s
bargaining committee, remarked in the form of a question,
"[w]hat are we going to do with the PMI’s?", to which he
(Moore) responded, [t]hat’s your problem, there are other
'°The three (3) exceptions were: (1) Item 2(b) - electronic
controls; (2) Item 6 - General housekeeping or cosmetic work;
and (3) Item 7 - Delivery and driving of parts and equipment
| delivery trucks. The Arbitrator notes as an interesting aside
that when the UA tendered its second proposal in these
| negotiations, proposing, among other things, the establishment
of the Job Classification of Maintenance Tradesmen, that it
listed among the duties of this classification general
housekeeping and the delivery and truck driving of parts or
equipment trucks. In any event, Moore asserted he was not
amenable to making specific reference in the Master
Agreement to work that was not work within the UA’s
jurisdiction.
eae ET TR en Ne mR
C - 55
duties for the PMI’s." Moore explained that the other duties he
was referring to were any duties not under the trade
jurisdiction of the UA. Moore related in his testimony that by
agreeing to Paragraph 8(1) as slightly modified by the Council,
the Union did not press to retain Paragraph 13(2) as set forth
in the 1986 Master Agreement as it viewed this paragraph as
being unnecessary, given the rewritten Paragraph 8(1).!”
Moore asserted in his testimony that the concession originally
granted by the UA with respect to its jurisdiction over
preventive maintenance work in 1976 and continued in the
1986 Master Agreement (Jt. Ex. 3 - Stl.) evidenced by the
"incidental to" language that appeared in Paragraph 13(2) of
both the 1976 and 1986 Agreements was rescinded by the new
language of Paragraph 13 in the 1989 Agreement (Jt. Ex. 1P).'®
In other words, Moore related, the new language brought back
all the preventive maintenance work within the jurisdiction of
the UA where it had resided prior to the 1976 Agreement (Jt.
Ex. 5 - Stl.).
The record evidence reflects that approximately a week after
the conclusion of the last bargaining session, Tarkowski, as
Spokesman for the Council’s Labor Relations Committee,
advised Moore in a letter dated March 28, 1989 (Co. Ex. 9 -
Stl.) that the Executive Committee of the Council had
approved the text of a letter that had been sent to the
"It is noted in the developed Agreement (Un. Ex. 15 -
Stl.), unilaterally written by the UA, that the UA was the party
who had dropped from Article II, the entire Paragraph of
13(2).
''The specific language referenced here is, "belt
adjustment, oiling, greasing and cleaning of such equipment
when incidental to or part of the repair or replacement."
C - 56
Management of each respective company, informing them of
the newly negotiated 1989 Master Agreement (Jt. Ex. IP).
Tarkowski concluded the letter by advising Moore that if he
had any questions or comments he should not hesitate to
contact him (Tarkowski). The letter sent by the Council to the
various companies reads as follows:
The PCSC and the United Association of Plumbers and
Pipefitters have negotiated a new two-year agreement,
effective March 31, 1989. The only change is in
paragraph 13, the scope of work. The existing
language was shortened and reworded to reduce
misunderstandings at the local level. In addition, in
agreeing on this new language, the Union and the
Company negotiators acknowledged across the
bargaining table, that the companies employ and will
continue to employ non-UA represented field
employees who, over the years, have performed, and
who will continue to perform, non-journeymen work.
It is important to both the Companies and to the UA
that all branches understand the intent of the revised
wording of Paragraph 13. We will be contacting you
through area management shortly.
By letter dated April 12, 1989, Moore responded to
Tarkowski’s letter of March 28, 1989 (Co. Ex. 10 - Stl.). This
letter reads in full as follows:
Dear James:
I have reviewed the text of your letter sent to
the managers of the companies represented by the
| Council informing them of the recent United
=
C - 57
Association-National Pneumatic Control Systems
Council Agreement.
We agree that the new language in Paragraph 13
was intended to reduce misunderstandings at the local
level. In this regard, the elimination of the old
Paragraph 13.2 which stated in part ’when incidental to
or part of the repair and replacement’ should go a long
way in avoiding future disputes concerning the scope of
the United Association work jurisdiction.
Sincerely yours,
(s) / M. E. Moore
Chairman
United Association
Negotiating Committee
In his testimony in a preceding arbitration, Tarkowski testified
that when the Council agreed to drop its proposed Paragraph
8(2), the list of tasks/duties it viewed as not work falling
within the UA’s jurisdiction, and, at the same time, accepting
the language of Paragraph 8(1) as modified, he (Tarkowski)
stated to Moore more than one time that in accepting the
language of 8(1), the member companies would continue to
operate as they had in the past, and that the Council was not
agreeing that Paragraph 8(1) covered work done by PMI’s or
Tech Reps. Tarkowski testified he also stated that if the Union
felt the new Paragraph 8(1) covered the work of PMI’s the
Union could file a grievance. According to Tarkowski, Moore
did not respond to this comment, but rather he remained silent.
In cross-examination, Tarkowski acknowledged that from the
very outset of the 1988-89 negotiations, the Union let it be
known that its primary thrust was to change the trade work
jurisdiction clause, specifically Paragraph 13, but that the
C - 38
Council sent the message it was not going to allow the Union
to secure the PMI work under its jurisdiction and that it
rejected every proposal made by the UA along these lines.
Tarkowski further acknowledged that the Union made clear its
intent to eliminate the "incidental to" language as a means of
addressing the problems it was having from the local unions
regarding the use of PMI’s, and that it was the Council’s view
that when it agreed to the elimination of this "incidental to"
language that what resulted was the Union had completely
given up the right to perform the PMI type work. Tarkowski
further testified that the Union was emphatic about taking out
the "incidental to" language and that Moore stated the purpose
of eliminating this language was to increase the scope of the
UA work. Tarkowski further testified he does not recall
whether he responded to Moore by telling him it was the
Council’s view that by eliminating the "incidental to" language,
the Union was decreasing the scope of its work jurisdiction.
Tarkowski explained, however, that it was the Council’s view
that Paragraph 8(1) as re-written which subsequently was
incorporated in the 1989 Agreement as Paragraph 13(1)
combined the work jurisdiction that was covered by Paragraphs
13(1) and 13(2) in the 1986 Master Agreement and that the
only major change was the elimination of the "incidental to"
language. Tarkowski related that the reference in the new
Paragraph 13(1) to service and maintenance of mechanical
equipment is all service and maintenance other than preventive
maintenance. According to Tarkowski, it is akin to, in
metaphorical terms, the difference between replacing brakes on
an automobile and changing out the oil. Tarkowski averred
that even though he did not impart to the Union the Council’s
view that by eliminating the "incidental to" language, it was
decreasing its scope of work, he was of the view the Union
knew this to be the case based on the fact of its years of
experience in negotiating agreements. Tarkowski stated that,
given his years of negotiating experience, he feels no
a
C - 59
obligation to point out to the other side a proposal the other
side makes that is unfavorable to their position and favorable
to his side’s position.
The record evidence reflects that nearly three-and one-half
months after the Council and UA reached agreement on the
1989 Master Agreement (Jt. Ex. IP), Local 562 located in St.
Louis, Missouri filed a grievance charging Johnson Controls
with violating the Agreement and identifying Paragraph 13 as
one of the clauses breached by its hiring of non-bargaining unit
employees to perform so-called "PMI" work which the Local
claimed was bargaining unit work. According to the grievance
(Jt. Ex. 2 - Stl.), Johnson Controls hired three (3) employees
to grease, change filters, units, belts, and perform general
maintenance and calibrations including service work. The
record evidence reflects the Council, Johnson Controls and
Local 562 and the UA progressed this grievance to arbitration.
The case was heard by Arbitrator Thomas J. Erbs on June 5,
1990 and Erbs rendered an Award October 5, 1990, denying
the grievance. That Award was incorporated into this
Arbitrator’s Award of May 19, 1992, addressing the sole issue
of arbitrability as Appendix A and by way of extension, the
Erbs Award is a part of this decision on the merits. Among
other findings, it was Erbs’ view that the Union’s position the
Council had agreed to higher paid journeymen performing the
disputed preventive maintenance work in question when, in
bargaining, it had rejected adding the lower paid Tradesman
classification was a conclusion that did not appear to be
supported by either the record or by logic. Erbs stated that
under previous agreements, neither journeymen nor apprentices
performed preventive maintenance work unless it was
performed as an incident to other specifically authorized
journeymen work. Erbs found notable that whereas the Union
was successful in adding the work of calibrating to its work
jurisdiction by one of the changes it made to the language of
C - 60
the new Paragraph 13(1), it did not effect such a change with
respect to preventive maintenance work. Erbs further found
the Union’s less than straightforward claim to its local unions
as to what was gained in negotiations, specifically that it had
‘gained jurisdiction over the preventive maintenance work, to
be an indication that the Union believed the issue was ripe for
arbitration. Erbs cited, however, the well-respected maxim that
a party should not be allowed to secure through arbitration
what it was unable to secure through negotiations. In noting
that the Union carried the burden of proof, Erbs observed that
that burden required him to find that the Company impliedly
conceded, after specifically rejecting, a major point of its
negotiating posture and on the facts before him, he could not
conclude that the Council did so. Erbs held that the Union had
not proven it was successful in securing for the journeymen
and apprentices the work jurisdiction of preventive
maintenance and that, accordingly, the Company did not
violate the National Agreement, as applied to the St. Louis
Branch, by assigning the disputed work to non-union
personnel.
The record evidence reflects that nearly three (3) months after
UA Local 562 filed its grievance that was eventually denied by
Arbitrator Erbs, UA General President Boede filed a written
grievance via letter dated September 26, 1989 (Jt. Grp. Ex. 2P)
with the Labor Relations Committee of the Council, wherein
the Union alleged Johnson Controls at its office in Peoria,
Illinois had employed a non-union employee to perform
bargaining unit work and, therefore, charged Johnson Controls
with a violation of multiple articles and paragraphs of the 1989
Master Agreement (Jt. Ex. IP) including Article II, Paragraph
13, the Work Jurisdiction clause. In addition to the grievance
which Boede requested be progressed to Step 2 of the
grievance procedure, Boede submitted a report that was
forwarded to him by UA Local 353 Business Manager, Larry
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Dawson, which Boede stated substantiated the allegations
contained in the grievance. The record evidence reflects that
by letter dated September 13, 1989 (Jt. Grp. Ex. 2P), Dawson
apprised Boede that officials from eight (8) locals in Central
Illinois, covering a geographical area within which Johnson
Controls conducts business, met with Johnson Controls
Management on two (2) occasions, once on September 1, 1989
and again on September 7, 1989 for the purpose of attempting
to resolve the "PMI issue".'? Dawson related Johnson
Control’s position was to employ PMIs and the Union’s
position was it would file a grievance if the PMI was
performing UA work. Dawson reminded Boede that
previously he had sent his office detailed information and work
sheets that Johnson had assigned UA work to a PMI. The
record evidence reflects the detailed information referenced by
Dawson had been forwarded by him to UA International
Representative Donald F. McNamara by transmittal letter dated
September 6, 1989 just one day prior to the second meeting
between the eight (8) locals and Johnson Controls. The record
evidence further reflects that the information was compiled by
UA Member of Local 353, Robert M. Lawless, a Journeyman
Fitter. This report is reproduced in full hereinbelow:
''As noted in the previous decision addressing the
arbitrability issue, the eight (8) Union Locals were: 25, 65,
81, 99, 137, 149, 293, and 353. The Peoria Office falls within
the geographical purview of Local 353. The PMI performing
the alleged UA work was working within the geographical
purview of each of the eight (8) UA Locals identified above.
Local #
WHERE DONE
#353 Item #1. Broadmoor School, Pekin, IL
8-17-89 Work task originally assigned
to Randy Wright (Fitter).
(A) Re-assigned and done by Joe
Kerner (PMI)
4-11-89 Work task originally assigned
to Russ Watts (PMI).
(A) Work performed by Jim Parrott
and Randy Wright (Fitters).
#25 = Item #2. Information only! Sears, Quincy, IL
5-3-89 Work done by Bob Lawless,
Local 353 Fitter.
#99 ~—s Item #3. Post Office, Bloomington, IL
Work originally assigned to and done by
Mark Blanchard (Fitter #99).
(A) Work re-assigned and done by
Joe Kerner (PMI) on 8-15-89.
#353 Item #4. Boy Scouts, Peoria, IL
Work originally assigned to and done by
Jim Parrott (Fitter #353).
(A) 8-3-89 work re-assigned and
done by Joe Kerner (PMI).
#353 Item #5. Dupont Chemical, El] Paso, IL
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This temporary repair work done as a
result of a fire, 4-6-89.
Work done by Joe Shallbetter and Russ
Watts of JCI.
Fitter was dispatched on following day
to make permanent repairs.
No fitter was originally dispatched to
make temporary repairs.
#149 Item #6. Farm Credit Services, Champaign, IL
Work originally assigned to and done by
Larry Swope (Fitter #149).
(A) 8-10-89 work re-assigned to and
done by Joe Kerner (PMI).
Item #7. Eye Witness Report
Eye witness report of a violation of
Jurisdiction job - Dupont Chemical
Date: 8-3-89
Time: Approximately 3:55 p.m.
Location of Violation: Johnson’s Shop,
9006 Industrial Road, Peoria, IL
On August 3rd, approximately 3:55 p.m., Randy Wright and
Jim Parrott (Fitters) returned to shop (9006 Industrial Road) to
pick up material for the following work day. Upon entering
shop area, they found Joe Kerner (PMI) laying inside of an
evaporator section of an air handling unit with his tools
scattered about him. Upon approaching him (Joe Kerner) he
was just snapping a drive belt back onto the unit fan and motor
assembly. Upon further inspection it was found that the motor
had been replaced with one of a closed housing style. This
was a new unit.
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On August 7th, at approximately 8:35 a.m., Jerry Bastian (JCI)
was asked by Bob Lawiess (Fitter JCI) in the presence of Tom
Meyer (Fitter), Randy Wright (Fitter), part time parts procurer,
Jim Parrott (Fitter), and Russ Watts (JCI part time PMI) if that
was a different motor on that air handler. Jerry Bastian replied
that it was necessary because the air handler was not equipped
with an explosion proof motor and that where it was going
required that it have one.
Jerry Bastian also acknowledged that it probably wasn’t the
smartest thing to have Joe Kerner (PMI) change out the motor.
This unit was shipped out on a trailer pulled by Jim Parrott
(Fitter #353) on 8-7-89, to the job site in El Paso.
Unit was installed by: Larry Mooney (Fitter #353) who
worked for mechanical
contractor, General Power and
John Venson (Tinner #1) of
Dumont Sheet Metal.
Robert M. Lawless
Local #353
Card #325-40-4316
(Jt. Grp. Ex. 2P)
At this arbitration hearing, Lawless testified he first learned of
Johnson Controls’ interest in filling a PMI position at its
Peoria Branch office sometime in June of 1988. According to
Lawless, on date of July 24, 1988, Johnson hired non-union
employee Joe Kerner for the PMI position.” Lawless recalled
*"It is noted by the Arbitrator that Kerner’s hiring preceded
the effective date of the 1989 Master Agreement (Jt. Ex. IP).
(continued...)
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that prior to hiring Kerner, Johnson interviewed another
prospective candidate for the position and on this date, July 14.
1988, he confronted Joseph Shallbetter, the Operations
Manager of the Peoria Branch office, apprising him that Local
353 was about to take in nine (9) apprentices and that Johnson
could certainly utilize them to perform some of the preventive
maintenance work. According to Lawless, Shallbetter
responded with the comment, "[W]e’re going to go nose to
nose on this" to which he replied, "[W]e certainly will."
Lawless testified that, in the past, Johnson had used apprentices
to perform the duties of preventive maintenance citing, as
examples, himself and employee Jim Parrott when he and
Parrott were initially hired as apprentices. According to the
record evidence, the duties the PMI was to perform were as
follows:
1) visual inspection of the equipment
2) oil and greasing
3) belt adjustments
4) changing of filters
5) troubleshooting to determine if there is anything
wrong
6) ordering parts to make any necessary repairs or
replacements.”!
°(...continued)
As an interesting aside, the Arbitrator notes this was in and
around the same time period Local 562 in St. Louis lodged a
complaint concerning the hiring of a PMI (see p. 20 of this
Award, Supra).
*"It is noted that the Parties at the hearing stipulated to this
list of duties with the understanding that in performing the
(continued...)
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Lawless testified he reported to Dawson that Johnson had hired
a PMI and that Dawson directed him to keep an eye on the
PMI to see what he was doing. Lawless explained that since
the nature of the job does not permit one to accompany a
fellow employee on service calls, the way in which he
accomplished Dawson’s directive was through monitoring his
own accounts, in other words, the accounts assigned to him to
determine whether the PMI was doing any of the work that he
was doing and, in addition, gathering the same kind of
observational data about the PMI from fellow steamfitters.
Lawless explained this was the methodology used in compiling
the information reproduced hereinabove which he submitted to
Dawson and which Dawson in turn submitted to UA
International Representative, McNamara (see pp. 40 and 41
above).
Lawless asserted that with the possible exception of two
particular duties performed by Kerner and listed among the
documents submitted into evidence, such as, for example,
resetting the main, all the duties performed by Kerner and
listed in the information that he submitted to Dawson was UA
work per the provisions of the 1989 Master Agreement (Jt. Ex.
| IP). Lawless acknowledged that between the years 1983 and
| 1989. Johnson Controls occasionally hired PMI type employees
| but that in August of 1989 it, for the first time, aggressively
pursued using a PMI offering Kerner as the example. Lawless
explained that what he meant by aggressively pursuing the use
of a PMI is what was reflected by the information he compiled
| which showed that UA Fitters were pulled off contracts and
71(__ continued)
duties of troubleshooting and ordering parts, the PMI does not
put tools to the equipment and tear it down to determine if
there is something wrong.
a a NE NC ONES SIREN MAR Meera NmDe Maw nes eoeP NOS lpr a
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the scheduled maintenance work reassigned to Kerner.
Lawless maintained that prior to August of 1989 or perhaps
prior to July of 1988 when Johnson hired Russ Watts to
perform PMI duties on a part-time basis, assignment of
scheduled maintenance work was only sporadically made to
non-union personnel. Lawless asserted that up until the time
Johnson hired Kerner, UA Mechanics were regularly assigned
routes in which they performed scheduled maintenance which
was not associated with an equipment breakdown or the work
of a repair and replacement. Lawless maintained that
scheduled maintenance work was exclusively UA work up until
1989 with the few exceptions that occurred in the 1983-1989
period. According to Lawless, under the 1989 Master
Agreement (Jt. Ex. IP), scheduled maintenance work was
recognized as UA work and that Johnson was in violation of
the Agreement when it hired Kerner as a PMI and reassigned
the scheduled maintenance work to him.
Larry Swope, a Business Agent for UA Local 149, one of the
eight (8) locals involved in the instant grievance, testified he
had been employed by Johnson Controls as a Service Mechanic
for nearly five years between the years 1984 and 1989.
According to Swope, in the time he worked for Johnson
Controls, he performed both service work and preventive
maintenance work which he estimated was evenly split 50-50
on a percentage basis. Swope explained that on a periodic
basis, either monthly or quarterly, he would visit an account
and perform scheduled maintenance work which involved such
duties as: (1) check calibration, (2) oiling and changing oil, (3)
greasing bearings, (4) changing belts, and (5) replacing filters.
Swope testified he considers preventive maintenance to be
skilled work explaining that in performing the various duties
except for filter changing, one is constantly evaluating the
HVAC system and ascertaining what, if any, improvements can
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be made to the system based on the customer’s needs.”
Swope identified the other UA Mechanics that worked in the
Central Illinois area, naming seven (7) to eight (8) employees
and testified that notwithstanding the fact their routes were
different than his, the whole of the work they performed was
no different than the whole of the work he performed.
Swope further testified that prior to Johnson Controls having
Watts and Kerner, there was only one instance he could recall
that the Company used a non-bargaining unit employee to
perform PMI work in his geographic area and that was a man
named Ron Sneeden. According to Swope, the then incumbent
Business Manager of Local 149 asked Sneeden to leave.
Swope testified that in his capacity as a Business Agent of
Local 149, he had, on more than one occasion, investigated the
type of work Kerner was performing. Swope testified that he
discovered Kerner had been assigned a service call to
determine why a boiler was not operating. According to
Swope, he discussed this assignment with Shallbetter, advising
him that the work in question was UA work and that giving
the work to Kerner was a breach of the National Agreement.
Swope testified that Shallbetter acknowledged he was right and
apologized, explaining that under the circumstances which
were that Kerner was in the area at the time, he (Shallbetter)
had to assign Kerner the work.
“In partial testimony, Operations Manager Joseph
Shallbetter stated just the opposite, that is, that in his view the
PMI duties referenced by Swope do not constitute skilled
work. The Arbitrator notes that earlier testimony proffered by
Moore concerning the lower rated Job Classification of
| Tradesman in the Mechanical Equipment industry supports the
view that preventive maintenance for the most part is not
skilled work.
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According to testimony by Rick Terven, Business Manager of
Local 99, subsequent to Dawson forwarding the information to
the UA concerning instances in which the Company had
violated the National Agreement (Jt. Ex. IP), by assigning UA
work to Kerner, a non-bargaining unit employee, he received
a telephone call from Mark Blanchard, a member of Local 99,
who reported that a "gentleman" was performing UA work at
the State Farm Corporate building located in Bloomington,
Illinois, and that he should come over to the building for a
first-hand look. Terven testified he responded to Blanchard’s
call by going to State Farm and there encountered Joe Kerner
wearing a tool belt, standing on a ladder and engaged in the
work of calibrating an aqua-stat on a steam unit heater.
Terven related he asked Kerner if he knew that the work he
was performing was UA work, that is, the work of pipefitters,
to which he responded in the affirmative, stating Management
had asked him to do the work and that he just wished this
situation (meaning the work jurisdiction issue) would be
resolved. Terven testified he read Paragraph 13 to Kerner and
after Kerner acknowledged his belief that the work he was
performing was UA work, he informed Kerner he was going
to call Kerner’s boss, Jerry Bastian, and advised Kerner he
really did not want him to do UA work. Terven testified he
called Bastian and reported the incident, that Bastian responded
he would look into the matter and would get back to him but
that Bastian never did get back to him. Local 353 Business
Manager Larry Dawson testified he received a telephone call
from Blanchard who apprised him he had observed Kerner
performing UA work at State Farm and that he advised
Blanchard to call his Busimess Manager Rick Terven.
Subsequent to Blanchard’s call, the record evidence reflects
that Blanchard reduced his observation to writing in a letter
dated October 10, 1989, which he sent to Dawson (Un. Ex.
7-P). Dawson related, after receiving the letter, he called Jerry
Bastian and he informed Bastian he had hard proof that Kerner
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performed UA work. According to Dawson, Bastian told him
he would look into the allegation but that Bastian never got
back to him.
Joseph Shallbetter, the Operations Manager in the Peoria
Branch of the Systems and Service Division of Johnson
Controls, testified that the business of the Division is to sell,
install, service and maintain automatic temperature controls,
fire alarms, and security systems for industrial and commercial
buildings. Shallbetter related that in 1989 the Peoria Branch
had in its employ two (2) PMIs, Russ Watts and Joe Kerner.
Shallbetter noted that Watts commenced employment in late
1988 and Kerner commenced his employment sometime in
August, 1989. According to Shallbetter, the duties to be
performed by the PMIs were as follows:
l. Check on air handling unit, heating and cooling
equipment for proper operation
a. Check filters on a programmed basis and
replace if necessary
Inspect, grease and lube fans and motors on a
periodic basis
U2
oe Check the temperature control and air
compressor for run times and record that date
on the scheduled maintenance visit report
5. Clean condenser and evaporator coils on air
handling units on a programmed basis
6. Adjustment and/or replacement of belts on a
scheduled basis
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7. Changing oil in the air compressor on a
programmed basis
8. Cleaning the general area
Shallbetter stated that none of the aforelisted duties require a
skilled employee to perform them. In testifying about specific
work Kerner performed which the Union claimed was UA
work, Shallbetter stated the following:
A) Worked Performed at Farm Credit - 4/9/90 (Un.
Ex. 6 - P) Shallbetter testified that Kerner
pushed a reset button on a boiler and, using a
screwdriver, adjusted the operating limit
downward from 210 degrees to 160 degrees.
Kerner also checked the pump operation, the
operation of the boiler and the controls and
noted they were working properly. Shallbetter
acknowledged in later testimony that this
assignment given to Kerner could be viewed as
a service call and that this was not work of a
PMI.
B) Worked performed at State Farm - 10/89 (Un.
Ex. 7 - P) Shallbetter testified that Kerner
dialed the pneumatic thermostat up and down to
check to see if the fan was working.
Shallbetter, in his testimony, confirmed he attended the
September, 1989 meetings with the eight (8) local unions and
that under discussion was the PMI work and that there was no
final resolution of the issue and essentially the parties agreed
they were in disagreement about the terms of the 1989
Agreement (Jt. Ex. IP) as it related to PMI work. Shallbetter
testified that in his review of the work orders of work assigned
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to and performed by Kerner that formed the basis of the seven
(7) items complained of by the local unions that is now the
subject of this arbitration, he was unable to discern any work
Kerner performed that fell outside of the preventive
maintenance tasks he identified hereinabove. Shallbetter
testified that preventive maintenance work except for that
falling within the parameters of the "incidental to" language
has never been the exclusive work of the bargaining unit but,
even so, there are occasions when he will assign non-incidental
scheduled preventive maintenance work to bargaining unit
employees such as when PMIs are overloaded with work or by
reason of convenience if the Fitter happens to be in the
specific geographic area of the account. Shallbetter testified
that prior to hiring Russ Watts in July of 1988, the Peoria
office had very little scheduled maintenance contract work but
that the limited amount of such work was performed by UA
mechanics.
As the Parties were unable to reach a mutually satisfactory
resolution of the instant dispute through the Contractual
grievance procedure, the matter now comes before this
Arbitrator for a final and binding determination.
CONTENTIONS
UNION’S POSITION
It is the position of the Union as set forth in its extensive
post-hearing brief, that the work identified to constitute
preventive maintenance is work belonging to the jurisdiction
of the Union pursuant to Article II, Paragraph 13(1) of the
1989 Master Agreement (Jt. Ex. IP). In pertinent part, the
Union’s post-hearing brief is incorporated as part of this
Opinion and Award and appended hereto as Appendix A.
eS
EMPLOYER’S POSITION
it is the position of the Company and Council as set forth in
its extensive post-hearing brief that the disputed work in
question is not covered by the 1989 Master Agreement and
therefore the performance of this work by non-union PMIs
does not constitute a violation of Article II, Paragraph 13(1) of
the Agreement (Jt. Ex. IP). In pertinent part, the Employer’s
post-hearing brief is incorporated as part of this Opinion and
Award and appended hereto as Appendix B.
OPINION
Collective bargaining is a process by which each party to the
bargain attempts to secure that which will satisfy its wants and
needs and, in the alternative, if it lacks the power to obtain
such rights and benefits, it will attempt to minimize any
arrangements that will be to its detriment. Collective
bargaining is a dynamic process so that over time, factors and
conditions once perceived as important and _ influential
considerations in the advancement of a party’s best interests,
ebb and flow, and other factors and conditions take their place.
The same holds true in terms of the balance of power between
the bargaining parties; that is, to say, that in some negotiations,
the employer will have the "upper hand", while at other times,
it will be the union. There also exists the situation where each
party is equally powerful, which makes for interesting and
tough negotiations and, in viewing the bargaining history
between the Parties at bar here, this seems to have been the
hallmark throughout the years of their relationship.
In an overall general sense, the driving force for employers in
bargaining is the economic considerations of marketplace
competition and the goal to maximize profits, whereas for the
unions it is the economic well-being of their constituent
C- 74
members as measured by wages, hours and the state of
working conditions. While parties may perceive their
respective needs and wants as being conflicting, that is, what
is beneficial to the employer may not also be beneficial to the
union, and vice-versa, there is generally an understanding by
the parties that a certain underlying compatibility of interests
exists between them that will insure an outcome that is not
lopsided in terms of the benefits gained or the concessions
made. In the simplest of terms, collective bargaining is a
process of give and take where the most beneficial outcome is
one in which neither party "loses" and neither party "wins", but
one in which both parties walk away from the negotiation
believing that each side, to the best of their ability, came as
close as they could to satisfying their respective objectives at
the bargaining table. Such satisfaction, however, does not
mean victory on all fronts at the expense of total capitulation
by the other side. What it does mean is that each party made
the necessary compromises in order to strike the best bargain
they could given all the prevailing pressures attendant on them
to reach agreement under all the prevailing circumstances.
An amusing story about the give and take nature of collective
bargaining, was told to this Arbitrator early on in his career in
labor relations by the illustrious neutral, David Cole, when he
served as Chairman of the National Commission for Industrial
Peace, and this Arbitrator served as the Presidential
Commission’s Executive Director. During the 1940’s, when
Cyrus Ching was serving as the first Director of the Federal
Mediation and Conciliation Service, he became involved in
settling a very contentious strike in the coal industry. The coal
association’s principal spokesperson was George Humphreys,
who later was to serve as U.S. Secretary of the Treasury, and
on labor’s side, the principal spokesperson was the powerful
President of the United Mine Workers, John L. Lewis.
Humphreys and Lewis were described as not very friendly to
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each other and very adversarial in their bargaining relationship,
so much so that the two men resisted ordinary attempts to
reconvene negotiations. Cyrus Ching, under political pressure
to get the nationwide strike settled, called a secret meeting
between himself, Humphreys and Lewis to be held in an
obscure hotel located in White Sulphur Springs, West Virginia,
outside of Washington, D.C., where all three resided. Wishing
to avoid media attention and coverage of the meeting, each
traveled to West Virginia separately and incognito. At the
appointed time, the three met in Ching’s hotel room. Ching
opened the meeting by thanking Humphreys and Lewis for
consenting to meet and then launched into a spiel about the
importance of settling the strike for the good of the nation,
concluding with the observation that collective bargaining was
a process of give and take, and then turning to Lewis, he asked
what his thoughts were, hoping that Lewis had picked up on
the idea of at least thinking about making some concessions.
Lewis looked at Ching and without any hesitation said, "I'll
take anything this SOB Humphreys wants to give me", to
which Humphreys replied, "I’ll be damned if I’ll give him
anything." This meeting, having lasted for only several
minutes, ended on this note, and a settlement of the dispute
was deferred until a later date.
The point of this story relative to the case at bar is an
illustration of the dictum, "the past is prologue", meaning that
one necessarily has to be versed in what preceded an event or
outcome in order to comprehend the meaning of the event or
outcome. Even though the Union maintains the instant
grievance can be decided without the necessity of having to
delve into a twenty (20) year history of collective bargaining
because, in its view, the language of Paragraph 13 in the 1989
Master Agreement (Jt. Ex. IP) is clear and unambiguous, the
Arbitrator respectfully disagrees with this position on grounds
that the present language of Paragraph 13, no matter how clear
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and unambiguous it appears to be on the surface, is definitely
a product of the give and take nature of bargaining that has
occurred in response to the changes and developments that
have occurred in the industry since the Parties commenced
their formal bargaining relationship in 1969. Furthermore, as
revealed by a review of the bargaining history, the issue of the
Union’s work jurisdiction has been a matter of vital interest to
both sides in every one of its six (6) rounds of negotiations as
evidenced by the remarkable revisions made to the clause since
the first Master Agreement (Jt. Ex. 8 - Stl.) was consummated.
A review of the bargaining history reflects that between 1969
and 1974, a period within which the Parties here negotiated
two Master Agreements, 1969 and 1972, the Parties left
unchanged the language of Paragraph 13, the work jurisdiction
clause, notwithstanding the fact that the five (5) principal
companies comprising the Council, along with other companies
signatory to the Master Agreements that were national in scope
were moving apace to diversify their business into service and
maintenance work of mechanical equipment. Although there
was the briefest of reference to the existence of "technicians"
that apparently were non-union employees used by some of the
companies comprising the Council, more specifically,
Honeywell and Johnson Controls, there is no evidence before
this Arbitrator regarding the tasks/duties performed by these
"technicians", nor the number of technicians that were actually
employed. In any event, it cannot be determined from the
state of this record whether the tasks/duties known by the
Parties to constitute preventive maintenance to mechanical
equipment was performed solely by technicians or whether
such work which appears not to have been too extensive at this
time was performed by technicians at some locations, by
journeymen and apprentices at other locations, or by both
technicians and journeymen and apprentices at still other
locations.
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In 1974, the record evidence reflects that a revision was made
to Paragraph 13 by the addition of the phrase "or other piping"
systems inserted three (3) times within the work jurisdiction
clause. The Union asserts that this added language reflected
‘jurisdiction over the service and maintenance.to mechanical
equipment work that the pneumatic companies were continuing
to acquire through fixed price, scheduled maintenance
contracts, on a bid basis which previously had been work
performed primarily by companies in the mechanical
equipment industry. In the latter industry, which is also
organized by the Union, such service and maintenance work is
reserved to bargaining-unit employees, but to a lower rated
classification of employees known as Tradesman. In any
event, the Union makes the case, based on the existence of the
Tradesman classification, that the work of preventive
maintenance is work that belongs to the Union, and that while
there was no such Tradesman classification in the Pneumatic
Controls industry, the work of preventive maintenance was still
work that fell within its jurisdiction as a result of the added
language, even though it was performed by the higher rated
paid journeymen and apprentices. The only testimony
presented by the Employer in refutation of the Union’s
position was that proffered by Larry Smith, a former employee
of Honeywell who was a member of the Council’s Labor
Relations Committee in the years 1969 to 1979, and who
asserted that the added language of "or other piping" systems
referred to sprinkler systems which some of the contractors
serviced and maintained. While there is really no way in
which to resolve this conflict in testimony since both witnesses
appear to have rendered credible testimony, the Arbitrator is
persuaded that since the language of "or other piping" systems
is general in scope as compared to the more specific, sprinkler
systems, the Parties must have had in mind a much broader
coverage of work. It is therefore highly plausible that "or
other piping" systems contemplated the inclusion of service
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and maintenance work to mechanical equipment. As support
for this finding, the Arbitrator notes that in the complete
revision of Paragraph 13(1) that resulted in the 1989 Master
Agreement (Jt. Ex. IP), the reference to "or other piping"
systems was deleted and specific references to mechanical
equipment were added.
In his decision in the St. Louis case, Arbitrator Erbs appears
not to have considered the significance of the 1974 work
jurisdiction clause and seemingly confined his review of the
historical evolution of preventive maintenance work back to
the 1976 Agreement only. This is evident by the following
findings made by Erbs wherein he averred that "historically,
the parties have viewed preventive maintenance work as
different from other service, maintenance and repair work on
various equipment." Erbs went on to identify preventive
maintenance tasks as including "oiling, greasing, various belt
adjustments, cleaning and other jobs associated with routine
maintenance outside of repair or replacement." Erbs then held
that such preventive maintenance work, in fact, had been
“carved out of the agreement as_a separate item which
belonged to the Council unless performed in conjunction with
a repair." Clearly, the record evidence detailing the history of
negotiations demonstrates that the development to which Erbs
makes reference did not occur until 1976, and that Erbs failed
to consider the state of affairs prior to 1976 but more
specifically, to the jurisdiction of work that existed between
1974 and 1976 which occasioned the carving out of a portion
of maintenance work from the whole of maintenance work.
While there is support for Erbs’ observation that preventive
maintenance work was viewed as different from other
maintenance work attendant to repair work on various
equipment, as evidenced by the results of bargaining between
the UA and the contractors party to the 1974 Mechanical
Equipment Service and Maintenance, Agreement wherein it
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was agreed to establish a "Tradesman" job classification to
perform such preventive type maintenance work, and where
such attempt was made by the UA to establish such a
Tradesman category with contractors in the pneumatic controls
industry but failed, nevertheless, the critical paint here is not
the distinction between maintenance work and preventive
maintenance work, but rather that the UA considered both
types of maintenance work as falling within their work
jurisdiction. Nowhere in this record evidence has the Council
demonstrated by any conclusive proof that between 1974 and
1976 the tasks/duties identified as constituting preventive
maintenance work were not the exclusive work of the Union.
In fact, given the circumstances extant in 1976, the only
plausible explanation for revising the work jurisdiction clause
with the insertion of the "incidental to" language was the
recognition by the Council that preventive maintenance work
was work within the exclusive jurisdiction of the Union. As
was noted above, the driving force for employers in bargaining
a labor contract are considerations of marketplace competition
and the ability to maximize profits. The situation that the
Council contractors found themselves in, in 1976, was that
they were disadvantaged with respect to marketplace
competition with mechanical equipment contractors for bidding
fixed price scheduled maintenance contracts and successfully
obtaining this work because the mechanical equipment
contractors were able to utilize the services of the lower paid
Tradesmen classification to perform the work, whereas the
Council contractors had to utiliz
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