Appeal from the United States District Court for the Southern District of Indiana. No. NA 82-37-C -- Cale J. Holder, Judge.
Pell and Eschbach, Circuit Judges, and Van Pelt, Senior District Judge.*fn*
Teamsters Local Union No. 89 (Local 89 or Union) appeals from the district court's judgment, following a full hearing, denying the Union's requests for an order requiring Public Service Company of Indiana, Inc. (PSI) to arbitrate certain grievances filed by Local 89 and for an injunction prohibiting PSI and a contractor from making any changes in warehousing operations until after resolution of the grievances. The primary issue on appeal is whether PSI was an "employer" of those persons represented by Local 89.
The present dispute arises out of the construction, for PSI, of the Marble Hill Nuclear Generating Station in Jefferson County, Indiana (Marble Hill or Project). Cherne Contracting Company (Cherne) has contracted, throughout the period of construction, to perform a variety of jobs at Marble Hill. Cherne employees working on the Project are represented by Local 89. Cherne and Local 89 are parties to a labor-management agreement, 29 U.S.C. § 185, providing for arbitration of the grievances of Cherne employees.
Cherne and PSI had a contractual arrangement whereby Cherne was to operate four PSI-owned warehouses at the construction site. From March, 1981, until February 27, 1982, nine Cherne employees were employed in jobs related to operation of the warehouses.
In February, 1982, PSI notified Cherne that, effective February 27, 1982, Cherne's services with respect to the warehouses were no longer needed. Cherne removed its employees from the warehouses. These nine employees subsequently filed grievances against both Cherne and PSI.
B. Marble Hill Project Agreement
A multi-party Project Agreement was executed in 1977 by all the parties then involved in the Marble Hill construction. Other parties, including Cherne, which began work at Marble Hill after the Project Agreement was signed, have signed letters assenting to be bound by it.
The first paragraph of the Project Agreement denominates the parties. PSI is shown as the "Owner." The "Employer" is stated to be "the various contractors and subcontractors performing work on the Project." Local 89 is included as one of the Unions involved in the Project.
The Project Agreement provides that the Owner retains the right to terminate or suspend construction on all or various phases of Marble Hill. Art. I-3. Article III reserves to the Employer daily control of all operations and labor relations functions. Article VIII provides that wages and benefits are governed by contracts between the Employers and the Unions.
Articles V and VI of the Project Agreement concern labor-management relations at Marble Hill. Article V provides that the Unions and employees "agree to process disputes with the Employer in accordance with the grievance provisions set forth in the Agreement." Article VI outlines the specific steps of the grievance and arbitration procedure. The roles of the Employer, employee and Union at ...