Manning v. Wiscombe

Decision Date03 July 1974
Docket NumberNo. 73-1688.,73-1688.
Citation498 F.2d 1311
PartiesMax MANNING, Trustee for and on behalf of Painters and Associated Trades Trust Fund, Plaintiff-Appellant, v. Ron WISCOMBE, dba Ron Wiscombe Painting and Sandblasting, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Richard W. Perkins, Turner & Perkins, Salt Lake City, Utah, for plaintiff-appellant.

George M. Mecham, Salt Lake City, Utah, for defendant-appellee.

Before LEWIS, Chief Judge, and PICKETT and BARRETT, Circuit Judges.

LEWIS, Chief Judge.

Through the execution of a series of counterpart agreements in 1967, appellee Ron Wiscombe, doing business as Ron Wiscombe Painting and Sandblasting, became a nonmember signatory to a collective bargaining agreement between the Salt Lake Chapter of Painting and Decorating Contractors of America (association) and the Brotherhood of Painters, Decorators and Paperhangers of America, Local No. 77 (union). Included in this agreement were provisions for the establishment and maintenance of a Painters and Associated Trades Trust Fund for health and welfare, apprenticeship and training, and vacations. According to the terms of the agreement, Wiscombe was to make contributions to the trustee of this fund for and on behalf of his employees performing work covered by the agreement based upon the number of hours worked by such employees.

Utah is a right-to-work state and Wiscombe employed both union and nonunion personnel in the prosecution of his business. From 1967 to 1971 Wiscombe made contributions to the trust fund on behalf of his union employees, although such contributions were incomplete. No contributions were made on behalf of nonunion employees. Appellant Max Manning, trustee for the fund, brought an action in district court under 29 U.S. C. § 185 to recover sums which he claimed were still owing for some of the work performed by union members and for all of the work performed by nonunion employees.

The incomplete contributions due on behalf of the union members were ordered to be paid by the district court below and do not present an issue here. But the court held that the funds on behalf of the nonunion employees were never owing under the terms of the collective bargaining agreement and dismissed the trustee's claim in this respect. The trustee now appeals that dismissal contending that under the plain language of the agreement nonunion employees were intended to be covered.

The sole issue before us is whether, under the collective bargaining agreement, Wiscombe was obligated to make contributions to the trustee's fund on behalf of his nonunion employees. Section I of the subject agreement provides:

The Association recognizes the Union as the bargaining representative of all of the employees employed by its contractor members where-ever such employees are performing work covered by this agreement.

It is undisputed that Wiscombe's nonunion employees were performing work covered by the agreement as defined in a subsequent section. And it is worth noting in this respect that Wiscombe's counsel, at hearing, agreed that as a general proposition "an employer who signs an agreement such as this, which provides for the payment to trust funds, is bound to make contributions on behalf of union and nonunion employees." But he argues that this agreement provides an exception in that the contract has from its inception been applied on a "members-only" basis, that nonunion employees were never represented in the bargaining negotiations,1...

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28 cases
  • Teamster's Local 348 Health & Welfare Fund v. Kohn Beverage Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 26 d1 Novembro d1 1984
    ...required for both union and non-union members. Audit Services, Inc. v. Rolfson, 641 F.2d 757, 761 (9th Cir.1981); Manning v. Wiscombe, 498 F.2d 1311, 1313 (10th Cir.1974). The absence of language distinguishing union and non-union employees indicates that the agreement covers all employees.......
  • Plumbers, Pipefitters and Apprentices v. Mauro's
    • United States
    • U.S. District Court — Northern District of New York
    • 10 d4 Fevereiro d4 2000
    ...v. Ryan, 818 F.2d 1102, 1105 (4th Cir.1987); Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620, 624 (3d Cir. 1984); Manning v. Wiscombe, 498 F.2d 1311, 1312-13 (10th Cir.1974); NYSA-ILA Med. and Clinical Servs. Fund v. Golten Marine Co., Inc., 1994 WL 800706, at *4 (S.D.N.Y. Dec.21, 1994); Cent......
  • Md. Elec. Indus. Health Fund v. Mesco, Inc.
    • United States
    • U.S. District Court — District of Maryland
    • 28 d5 Fevereiro d5 2014
    ...for all employees indicates that fringe benefit contributions are required for both union and nonunion members."); Manning v. Wiscombe, 498 F.2d 1311, 1312-13 (10th Cir. 1974) (finding no ambiguities and concluding that contributions were required for both union and non-union employees). b.......
  • NATIONAL BEN. FUND, ETC. v. PRESBY. H., ETC.
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    • U.S. District Court — Southern District of New York
    • 27 d1 Março d1 1978
    ...union, and to other defenses asserting that the union had surrendered the rights of the fund beneficiaries, e. g., Manning v. Wiscombe, 498 F.2d 1311, 1313 (10th Cir. 1974). Benedict Coal does not shield a fund from all defenses applicable to the promisee union. See Calhoun v. Bernard, 333 ......
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