Decision Date26 November 1984
Docket NumberNo. C-1-82-755.,C-1-82-755.
Citation598 F. Supp. 212
PartiesUNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, MILLWRIGHTS AND MACHINERY ERECTORS, LOCAL UNION 1519, Plaintiff, v. BACKMAN SHEET METAL WORKS, INC., Sheet Metal Workers International Association, Local Union 98, and Sheet Metal Workers International Association, Defendants, v. TRI-STATE BUILDING AND CONSTRUCTION TRADES COUNCIL, International Association of Bridge, Structural and Ornamental Ironworkers, Local 769, AFL-CIO, and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 105, AFL-CIO, Additional Defendants.
CourtU.S. District Court — Southern District of Ohio


Frederick G. Cloppert, Jr., Columbus, Ohio, for plaintiff.

Leonard Sigall, Reynoldsburg, Ohio, John Pinney, Cincinnati, Ohio, David Hols, St. Paul, Minn., Jonathan D. Schiller, Washington, D.C., Gary Eby, Cincinnati, Ohio, for defendants.


CARL B. RUBIN, Chief Judge.

This matter is before the Court following the presentation of evidence and testimony at a trial to the Court. The alignment of parties in the caption of this case is such that some explanation is required. This matter was originally filed by the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Millwrights and Machinery Erectors, Local Union 1519 ("Millwrights") against Backman Sheet Metal Works, Inc. ("Backman"), and Sheet Metal Workers International Association, Local Union No. 98, and Sheet Metal Workers International Association ("Sheet Metal Workers") for declaratory judgment. Subsequently, the Tri-State Building and Construction Trades Council ("Tri-State"), the International Association of Bridge Structural and Ornamental Ironworkers, Local 769, AFL-CIO ("Ironworkers"), and the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 105, AFL-CIO ("Boilermakers") were added as parties defendant. Backman asserted a counterclaim against the Millwrights under section 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187 (1982) and cross claims against the Boilermakers, Ironworkers, and Tri-State for breach of contract under section 301 of the Act, 29 U.S.C. § 185 (1982). The matter was presented to the Court with Backman as de facto plaintiff and the other parties as defendants. This litigation arose out of a sub-subcontract held by Backman for the fabrication and erection of some equipment at an ethanol plant being constructed at Southpoint, Ohio. The case presents essentially a jurisdictional dispute among the unions for which Backman seeks damages. In accordance with Rule 52 of the Federal Rules of Civil Procedure, the Court does submit herewith its Findings of Fact, Opinion, and Conclusions of Law.

I. Findings of Fact

(1) At sometime prior to 1981, the Pritchard Corporation ("Pritchard") was awarded a contract by Ashland Oil Co. to construct an ethanol plant at Southpoint, Ohio. A subcontract was awarded by Pritchard to the Continental Screw Conveyor Corporation ("Continental") to design, construct and install a grain conveyor system. A second subcontract was entered into between Continental and Backman wherein Backman was required to fabricate and erect dust collectors and spouts. No dispute has arisen among the parties regarding the fabrication portion of the agreement.

(2) A collective bargaining agreement was executed on November 15, 1981, between Pritchard (general contractor), Tri-State, and their affiliated unions, including the Boilermakers, Sheet Metal Workers, Ironworkers, and Millwrights. This collective bargaining agreement, termed the Project Agreement, covered all work to be performed at the Ashland ethanol plant. (See Backman Exhibit 3). Continental, as subcontractor to Pritchard, was signatory to the Project Agreement. It is undisputed that all of the parties before the Court were bound by the terms of the Project Agreement.

(3) The Project Agreement provides in pertinent part:

9.1 There shall be no strikes, work stoppages, or slowdowns of any kind for any reason against the Employers....
9.3 The Unions agree individually that if any Union, individual, or group of employees covered by this Agreement engage in picketing or any work stoppage on the job, the other Unions and employees shall consider such picketing or work stoppage as an unauthorized strike and will refuse to honor any picket line established. Failure of any Union or groups of employees to cross such unauthorized picket lines on this project shall be a violation of this Agreement....
10.1 The rules and regulations of the Impartial Jurisdictional Disputes Board or its successor board shall apply.
10.2 All Contractors shall hold pre-job and mark-up conferences with the Unions to clear up work assignments in which there is thought to be a difference in opinion.... The Contractor (or Subcontractor) who has the responsibility for the performance and installation shall make a specific assignment of the work in accordance with agreements or decisions of record.
In the absence of such agreements or decisions of record, it is the employer's responsibility to make the assignment in accordance with Procedural Rules and Regulations of the Impartial Jurisdictional Disputes Board.
10.3 In the event a jurisdictional dispute arises after an assignment has been made, the business agents will first seek resolution of the dispute on the job.
10.4 In the event no resolution is possible, the respective International Union and/or Impartial Disputes Board procedures shall follow.
11.1 There shall be no lockout, or strike, or cessation, or slowdown of work due to grievances arising during the life of this Agreement. It is specifically agreed that in the event that any disputes arise out of the interpretation or application of this Agreement, exclusive of questions or jurisdiction on work, the same shall be settled by means of the procedure set out in this Article....


(4) The Project Agreement was incorporated by reference into the subcontract between Backman and Continental. (See Backman Exhibit 2 at p. 2; Attachment Exhibit E). A draft of the contract between Continental and Backman was received by Backman in September, 1981, but was not signed by Backman at that time because it was not in final form. Backman's intention to perform the ethanol plant job was expressed in a letter dated September 11, 1981. (Backman Exhibit 4).

(5) Some months before the May 17, 1982 jurisdictional dispute, Backman had agreed to sign the Project Agreement but had not formally signed it because Continental had not sent it to Backman at that time. (Backman Exhibit 23). When Backman entered the job-site for the first time on April 28, 1982, the contract with Continental still had not been signed because several terms were still being negotiated, including total price, types of stainless steel, drain systems, and receiving pits.

(6) Backman made an assignment of work to the Sheet Metal Workers in its first pre-job conference held on May 7, 1982. The assignment of work to specific crafts is required by the procedural rules and regulations of the Impartial Jurisdictional Disputes Board, which state that "the contractor who has the responsibility for the performance and installation shall make a specific assignment of the work which is included in his contract...." (Backman Exhibit 45 at p. 4). The assignment made by Backman met with vigorous opposition. The Boilermakers claimed 50% of the dust collector system, Ironworkers claimed all structural steel and unloading mechanical equipment, and Millwrights claimed interconnecting spouting, fans, and chutes. Mr. Crabtree, business agent of the Millwrights, stated at the meeting that Backman had violated Article 10.1 of the Project Agreement and recommended that Pritchard notify Tri-State that Backman should not be permitted on the job-site until the dispute was resolved.

(7) On May 10, 1982, Backman started construction at the ethanol plant. Pritchard subsequently asked Backman to stop working because of the disputed work with the Ironworkers, Boilermakers, and Millwrights. Backman left the site on May 11 after the trailer was unloaded and was not permitted on the site through May 14. Backman returned to work at the job-site May 17.

(8) A second pre-job conference was held on May 17 at Pritchard's request to resolve the disputed work assignments. At the meeting, Backman stood by its original assignment, as it was required to do, (see Backman Exhibit 45) and the Boilermakers, Ironworkers and Millwrights reasserted their original objections. Harsh words were exchanged at the meeting and a threat was made by Ellis Harmon, the Ironworkers' business agent, that "Sheet Metal Workers wouldn't touch any structural steel or there would be no Ironworkers on the job the next morning."

(9) It was alleged that the Boilermakers, Millwrights, and Ironworkers walked off the job on May 18 due to the jurisdictional dispute, resulting in a work stoppage. The work stoppage was unauthorized but not all participants were clearly identified. Like most such occurrences, the evidence was confusing and conflicting. A system of trade identification was used on the job with different colored hard hats identifying different crafts. While some doubt was cast upon the reliability of the hard hat identification, the Court notes that it was only the defendant unions who were directly affected by the job assignments. It is something less than logical to assert that members of unrelated crafts, having no interest whatsoever in the outcome of the jurisdictional dispute, would walk off of a job and lose income thereby. Ferris, a Backman employee, testified that he did not actually see either the Boilermakers or Millwrights leave the job-site, since there was a quarter-mile's distance from the site to the gate. However, Backman's...

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