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In re Final Agency of Decision of the Board Examiners of Electrical Contractors

December 17, 2002

IN THE MATTER OF THE FINAL AGENCY DECISION OF THE BOARD OF EXAMINERS OF ELECTRICAL CONTRACTORS AS TO CONDUIT INSTALLATION BY J. FLETCHER CREAMER & SON, INCORPORATED.


On appeal from a final action of the Board of Examiners of Electrical Contractors.

Before Judges Havey, A. A. Rogriguez and Wells.

The opinion of the court was delivered by: Wells, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically October 17, 2002

The International Brotherhood of Electrical Workers, Local 269, (IBEW) appeals from a final decision of the Board of Examiners of Electrical Contractors (Board) within the Division of Consumer Affairs, Department of Law and Public Safety. That decision held that certain work performed by a contractor, J. Fletcher Creamer, (Creamer) on a New Jersey Turnpike project was not electrical work and therefore, required no permit from the Board and need not have been supervised by a Board licensed electrical contractor.

The facts, upon which the record reveals no material dispute, are simply stated. The IBEW filed a complaint with the Board when it discovered that general laborers, employees of Creamer rather than electrical workers, had installed indoor rigid metal cable-carrying conduit at a project at Exit 7 of the New Jersey Turnpike. The purpose of the project was to convert one or more toll booths for Easy-Pass use by Turnpike motorists.

The complaint charged that the conduit had not been properly grounded or bonded. It claimed the conduit was capable of carrying electrical wire and as such, required that the work be performed by electrical workers and supervised by a Board licensed electrical contractor.

Upon receipt of the complaint, the Board investigated. It discovered that the conduit in question was installed to contain fiber-optic cable to implement the high speed data transmission needs of the largely computerized project. It is undisputed that fiber-optic cable does not transmit electrical current of any voltage, but rather, transmits light pulses.

In a letter response to the complaint dated February 16, 2001, the Board, after reviewing all the documentation sent to it by the IBEW and Creamer, ruled that "there [was] insufficient cause for any action to be taken" against Creamer. The IBEW, in a letter dated March 5, 2001, asked the Board to withdraw its decision for failure to give the IBEW an opportunity to respond to Creamer's submissions and for failure to advise whether the Board had issued Creamer a license or permit for the work in question.

The Board responded on April 18, 2001. It stated:

Please be advised that based on the review of the documentation received, the Board, in its investigation, determined that the work performed did not require a license and business permit as it did not involve a potential of more than ten volts.

The letter further indicated the Board had made its decision "as a matter of law" and that it considered the case closed.

On June 11, 2001, the IBEW wrote once again. It asserted that the work at issue "involved much more than 10 volts, and constitutes work that undeniably requires a license and business permit." Citing provisions of the Uniform Construction Code and the National Electrical Code of 1999 (NEC), which refer to conduit as "raceways," the IBEW repeated its assertions that the work was electrical in nature, especially where the conduit could accept both fiber-optic cable and electrical wire in the same raceway. The letter then went to state:

In the present instance, our investigators have found that the metal conduit connects directly to the end terminals, creating a continuous electrical conductor. The conduit is grounded in multiple location for electrical purposes, and is fully and completely bonded to the panels. (See Certification of Wayne DeAngelo, enclosed herewith.) As such, we request that the Board reconsider its prior decision based upon this evidence. Attached to the DeAngelo Certif-ication, please find true copies of photographs taken by Mr. DeAngelo at the Exit 7 project, which indicate that the metal conduit is fully bonded directly with the panels, and is grounded. ...


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