Chicago Bridge & Iron Co. v. Industrial Acc. Commission

• Decision Date: 14 April 1964
• Citation: Chicago Bridge & Iron Co. v. Industrial Acc. Commission, 38 Cal.Rptr. 57, 226 Cal.App.2d 309 (Cal. App. 1964)
• Court: California Court of Appeals
• Parties: CHICAGO BRIDGE & IRON COMPANY, a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Clyde D. Coplin, Respondents. Civ. 27824.

Page 57

38 Cal.Rptr. 57

226 Cal.App.2d 309

CHICAGO BRIDGE & IRON COMPANY, a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Clyde D. Coplin, Respondents.

Civ. 27824.

District Court of Appeal, Second District, Division 3, California.

April 14, 1964.

Lawler, Felix & Hall, Kenneth B. Wright and Douglas Van Dyke, Los Angeles, for petitioner.

E. Herbert Herlihy and F. George Herlihy, Los Angeles, amici curiae on behalf of petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles and Silver, McWilliams & Sherman, Wilmington, for respondents.

FORD, Justice.

The sole question presented in this matter is whether the commission erred in its determination that the contract of hire pursuant to which the respondent Clyde D. Coplin worked for the petitioner Chicago Bridge & Iron Company was made in California and that, accordingly, the commission had jurisdiction with respect to an injury to Mr. Coplin which occurred in Nevada. ¹

The articles of agreement between the union to which Mr. Coplin belonged and the signatory employers, including the petitioner Chicago Bridge & Iron Company, covered field construction work in California and Nevada, as well as in other designated states. It was therein provided in part as follows: 'All applicants for employment shall be required to furnish the Contractor satisfactory evidence in writing of their qualifications and skill from any source that is recognized as a proper source by the Contractor, not limited to the Union, and such evidence shall be kept by the Contractor. The Contractor shall have the right to reject any applicant for employment who is unable to this establish his qualifications and skill necessary to perform the work required by the Contractor or for any other bona fide reason.' In an appendix to the agreement it was stated: 'The Contractor retains the right to reject any job applicant referred by the Union.' Other rules contained provisions as to classifications and wage scales for employees and as to hours of work.

Provision was also made in the agreement for travel expense and subsistence where the job was located at a substantial distance from the city in which the local union having jurisdiction of the job was located. Part of the agreement with respect thereto was as follows: 'It is the intention of the parties that employment commences and ends at the job site. In recognition of other travel costs incurred by the employee before commencement and after termination of his employment, Contractor agrees to supplement the transportation allowance provided * * * above, by reimbursing eligible employees at the rate of fourteen cents (14cents) per mile between such city hall and the job site for such expenses incurred prior to and after termination of their employment.'

With respect to union representation at the place of work it was provided in part as follows: 'A steward shall be a working journeyman who shall, in addition to his work as a journeyman, by permitted to perform during working hours such of his union duties as cannot be performed at other times. * * * The union shall notify the Contractor of the name of the steward. It is recognized by the Contractor that it is desirable that the person named as steward shall remain on the job as long as there is work which he is capable of performing.'

In determining whether there is sufficient support in the record for the finding that the injury was sustained by Mr. Coplin 'while performing service under a contract of hire entered into within the State of California,' this court is governed by the law concisely stated in Gonzales v. Industrial Acc. Comm., 50 Cal.2d 360, at page 364, 325 P.2d 993, at page 996, as follows: 'Findings of the Industrial Accident Commission are not subject to review on the ground that there is no substantial evidence to sustain them, except insofar as it may appear that they have been made without any evidence whatever in their support. Douglas Aircraft [Co.], Inc., v. Industrial Acc. Com[m.], 47 Cal.2d 903, 905, 306 P.2d 425.' The evidence which lends support to the commission's finding will be stated.

H. W. Gillespie testified that he was business representative for the Boilermakers' Union for the area of San Bernardino and Riverside Counties in California and three southern counties in Nevada. He described his duties as being 'to dispatch men, control jobs, to handle jurisdictional disputes, and generally to service our men.' The local union he represented had one hiring hall. That hall was in Los Angeles and was for the area of southern California and four southern counties of Nevada. In the latter part of 1961, Mr. Gillespie spoke to Mr. Turner, foreman for the Chicago Bridge & Iron Company, at the location of the work which that company was doing near Fontana, California. Mr. Turner was preparing to go to a job at Mercury, Nevada, and was going to take the crew which he had been using on the Fontana project. Mr. Gillespie further testified as follows: 'Told him that I would send him a steward on the job, Mr. Coplin, who will be the steward in the Mercury, Nevada, job; and after he called in and said he could use the man, he later called, if my opinion is right, and said there would be a week or so before he could use him on account of material and asked if they can have a temporary steward until he arrived at the job, and we stated yes. And we sent Mr. Coplin up--dispatched him out of the hall as steward on the job and a welder.' At the time he spoke to Mr. Turner, the Nevada work had not commenced and there was no steward on the job. Mr. Turner told him 'nothing' with reference to whether Mr. Coplin would be acceptable. At that time Mr. Gillespie indicated that he was sending Mr. Coplin; he was a welder qualified for the job and would be the steward. The actual work order or request did not come in until sometime after this conversation. On cross-examination, Mr. Gillespie testified that Mr. Turner raised no objection when he told him that he would send a welder, Mr. Coplin, to be the steward.

In later testimony, Mr. Gillespie said that the Chicago Bridge & Iron Company employed the services of Waggoner's Secretarial Service in Las Vegas, Nevada, in the processing of the necessary forms used to obtain clearances for its employees as required by the Atomic Energy Commission.

John Leckie testified that he was business representative for the Boilermakers' Union, Local 92, in Los Angeles. He received a telephone call on November 29, 1961, from Mr. Turner, foreman for Chicago Bridge & Iron Company, who was in Fontana, California. Mr. Leckie related the conversation as follows: 'Request to transfer, I don't remember how many men at that time, six or five, whatever it was; and I stated to him that would be fine, we would--a transfer would be issued, and we would put a steward on the job. Turner at that time told me, he said, well, that part was fine, we couldn't use him right now and would I hold for one week and would be glad for us to send him a steward; I said under those circumstances, because of material and that they couldn't use him. I said the man would be a welder named Clyde Coplin, who was our representative, representing the business agent on the job as a steward.' Mr. Coplin was mentioned by name in that conversation and Mr. Leckie told Mr. Turner that Mr. Coplin would be the steward on the job. The work order was prepared the next day. Mr. Leckie further testified that 'it is customary on all jobs that we place a steward; they leave one opening.'

Mr. Coplin testified that he lived in Los Angeles. He went to the office of the local union about every day or every other day in the period of time before December 7, 1961. Several days prior or that date Mr. Leckie told him that there had been a call about 'that job in Nevada' to the effect that he should be there on December 11. On December 7 he received from Mr. Leckie a work order which designated the time at which he was to report for work as 8 a. m. on December 11, 1961. He traveled to Nevada in his own automobile and, after arriving there on or about December 9, a Saturday or Sunday, he reported to Waggoner's Secretarial Service in Las Vegas pursuant to the direction on the work order. He gave the woman there the record of his previous employment and information as to his previous places of residence. He understood that the purpose was to see if he was a security risk because of 'the atomic energy.' He received a clearance. On the day following his visit to the Waggoner office, he reported to Mr. Turner, the foreman for the Chicago Bridge & Iron Company, at the job site at Jackass Flats. He signed several forms, some of which, he testified, were probably forms for him employer and others probably government tax forms. Then he changed his clothes and went to work. His first assignment was to do welding work. He later received $66 or $68 from his employer for expenses in traveling to the job site in Mercury, Nevada.

James Turner testified that he was employed as foreman for Chicago Bridge & Iron Company at Mercury, Nevada, in the period during which Mr. Coplin worked there. The project commenced on December 4, 1961, and Mr. Turner was in charge for his company. All the men, other than Mr. Coplin, had worked on the previous job at Fontana, California. Mr. Turner testified that Mr. Gillespie informed him that Mr. Coplin would be sent to the job as steward. He had not requested that Mr. Coplin be sent and did not know him before he arrived. He believed that that conversation with Mr. Gillespie was not at Fontana, California, but that it took place on Mr. Gillespie's first visit to the job at Mercury, Nevada, during the first week in December. While he was at Fontana he did talk to Mr. Leckie on the telephone. His best recollection as to that conversation was that it was about the transfer of his whole crew from Fontana to Mcrcury, Nevada. He...