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CARPENTERS' DIST. COUNCIL OF WESTERN PENNSYLVANIA

March 26, 1980

CARPENTERS' DISTRICT COUNCIL OF WESTERN PENNSYLVANIA, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Plaintiff,
v.
W. O. KESSEL CO., INC., t/d/b/a Kessel Construction Company, Inc., Defendant.



The opinion of the court was delivered by: KNOX

This action arises under the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 141 et seq. and is brought by the plaintiff labor organization, Carpenters' District Council of Western Pennsylvania, United Brotherhood of Carpenters and Joiners of America (the Union) to secure injunctive and monetary relief for breach of a collective bargaining agreement entered into with defendant W. O. Kessel Company, Inc., of whom Kessel Construction Company, Inc. is allegedly the alter ego. Jurisdiction is properly invoked pursuant to Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185 (hereinafter the Act).

The case was tried before the court non-jury on November 19, 1979. The court makes the following:

 Findings of Fact

 1. Plaintiff, the Carpenters' District Council of Western Pennsylvania, United Brotherhood of Carpenters and Joiners of America (the Union) is a labor organization with its headquarters in Pittsburgh, Pennsylvania.

 2. Defendant, Kessel Construction, Inc. is a Pennsylvania corporation located at 95 Rutherford Run, Bradford, Pennsylvania, where it is engaged in the construction business.

 3. W. O. Kessel Co., Inc. was originally formed as a Pennsylvania corporation headquartered in Bradford, Pennsylvania, where it was also engaged in the construction business. Prior to July of 1976, W. O. Kessel was owned by Richard Kessel, W. O. Kessel, Martha Wilcox and Alan Kessel, all of whom are related by blood or marriage. In July of 1976, Richard Kessel became its sole owner.

 4. W. O. Kessel Co., Inc. had a long standing collective bargaining relationship with the Union. In April of 1976, W. O. Kessel formally entered into a collective bargaining agreement with the Union which included, inter alia, a pre-hire agreement, wage and fringe benefits provision, and a dues-checkoff provision. (See Plaintiff's Exhibit 1) This collective bargaining agreement covered the time period from April of 1976 through March of 1979 and was to be renewed automatically each year thereafter unless written notice was given within 60 days of the expiration date.

 5. In the fall of 1977, W. O. Kessel Co., Inc. was in serious financial trouble and on September 22, 1977 sold certain of its assets, including the right to use its name, to Angelo and Douglas Micale. The Micale brothers continued to operate W. O. Kessel in the same line of business with the same employees, although under a different name, and continued to comply with the terms of the collective bargaining agreement negotiated between the Union and W. O. Kessel.

 6. Also on September 22, 1977, Richard Kessel chartered a new corporation, Kessel Construction Co., Inc., owned by Richard and his wife. The substantial bulk of assets owned by W. O. Kessel Co., Inc. were sold to Kessel Leasing Co., owned solely by Richard Kessel. Kessel Leasing Co., in turn, leased those assets to Kessel Construction Co., Inc.

 7. Paul (Tex) Adams, field supervisor for W. O. Kessel, went with Kessel Construction, as did Lars Olsson, present foreman for Kessel Construction Co., Inc. None of Kessel Construction Co.'s employees were ever union members.

 8. In March of 1978, Richard Kessel informed Glenn E. McMillen, business representative of the Union, that his attorney had informed him that his new corporation was not bound by the terms of the collective bargaining agreement and that he had no intention of honoring it.

 9. W. O. Kessel and Kessel Construction operated out of the same office facilities, were primarily engaged in the business of designing and constructing "butler buildings" in the same geographic area and engaged employees who render carpentry services.

 Discussion

 Defendant contends that there was never a contract between the parties, since none of its employees were union members nor did Kessel Construction Co., Inc. ever sign a contract with the Union. Therefore defendant contends there is no jurisdiction under § 301 of the Act. Under 29 U.S.C. § 185(a), both the existence of a contract of the kind specified therein and a violation of that contract are indispensable prerequisites to the court's jurisdiction. Adams v. Budd Co., 349 F.2d 368 (3d Cir. 1965); Leskiw v. International Brotherhood of Electrical Workers, 464 F.2d 721 (3d Cir. 1972), cert. denied, 409 U.S. 1041, 93 S. Ct. 526, 34 L. Ed. 2d 490 (1972). Whether or not a contract exists in this case depends on plaintiff's ability to prove that Kessel Construction Co., Inc. is in fact the alter ego of W. O. Kessel Co., Inc., who admittedly did have a contract with the Union. Under 29 U.S.C. § 185, the court has jurisdiction to determine ...


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