Seymour v. Hull & Moreland Engineering
| Decision Date | 10 August 1976 |
| Docket Number | No. CV 74-307-AAH.,CV 74-307-AAH. |
| Court | U.S. District Court — Central District of California |
| Parties | Joseph H. SEYMOUR et al., etc., Plaintiffs, v. HULL & MORELAND ENGINEERING et al., etc., Defendants, and International Union of Operating Engineers, Local Union No. 12, AFL-CIO, Intervenor. |
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Wayne Jett and Timothy P. Sullivan, Los Angeles, Cal., for plaintiffs.
Nelson, Kirshman, Goldstein, Gentile & Rexon by Jeffrey C. Freedman, Los Angeles, Cal., for defendants.
Rose, Klein & Marias by Robert M. Simpson, Los Angeles, Cal., for plaintiff in intervention.
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN FAVOR OF PLAINTIFF IN INTERVENTION (INTERVENER)
Said cause having been heard, evidence both oral and documentary having been introduced, and having been submitted for decision, the Court now makes the following Findings of Fact and Conclusions of Law in relation to the complaint in intervention:
1. The International Union of Operating Engineers, Local Union No. 12, was and is an unincorporated labor organization in which employees participate, and which exists for the purpose of dealing with employers concerning grievances, wages, hours and terms and conditions of employment.
2. At all times herein relevant, Local Union No. 12 has and now represents employees employed in industries affecting commerce within the meaning of Section 301 of the Labor Management Relations Act of 1947 (29 U.S.C. Section 185).
3. Defendant Hull & Moreland Engineering was a partnership existing under and by virtue of the laws of the State of California with a principal place of business located in the County of Kern, State of California until February 11, 1969, at which time the individual partners of Hull & Moreland Engineering caused it to be incorporated in the State of California as a corporation known as Hull-Moreland & Associates, Inc.
4. That on February 11, 1969, the corporation placed on its payroll all or substantially all of the employees of Hull & Moreland Engineering and succeeded to the obligations of Hull & Moreland Engineering under the applicable collective bargaining agreement.
5. On December 28, 1967, defendant Hull & Moreland Engineering executed a short form agreement with Local 12. The short form agreement incorporates by reference the terms of the Master Survey Agreement entered into between Local 12 and the Southern California Chapter and the San Diego Chapter of the California Council of Civil Engineers and Land Surveyors, which was in effect from August 1, 1965 to August 1, 1969. The short form agreement by its terms also incorporates by reference the terms of the successor Master Survey Agreements in effect during the periods August 1, 1969 through August 1, 1974, and August 1, 1974 through August 1, 1977.
6. During the period from September 11, 1973, through July 31, 1974, defendant Hull-Moreland & Associates, Inc. paid monies to persons performing field survey work for the following hours:
a. Harold Hardin ............ 272.0 Hrs
b. Hardin's crew ............ 833.5 Hrs
c. Kern Engineering ......... 1094.0 Hrs
___________
TOTAL 2199.5 Hrs
7. During the period from September 11, 1973, through July 31, 1974, defendant Hull-Moreland and Associates, Inc. paid wages to persons performing field survey work for a total of 380.0 hours.
8. During the period September 11, 1973, through July 31, 1974, the Agreement provided that the hourly wage rates for persons employed in the classifications of Party Chief and Chainman are $8.25 per hour and $7.59 per hour, respectively.
9. During the period from August 1, 1974, through August 31, 1975, Harold Hardin and others submitted billings to Hull-Moreland & Associates, Inc. for performance of field survey work for the following total number of days:
a. Harold Hardin ............ 120 days
b. Hardin's crew ............ 137 days
c. Others ................... 6 days
________
TOTAL 263 days
10. Article III, Paragraph B5 of the Master Survey Agreement provides that if an employer improperly hires or utilizes workmen in violation thereof, Local 12 is entitled to damages as follows:
1. For all time worked by each improperly hired person in the capacity of Party Chief:
(a) The sum of $8.25 per hour for each hour worked during the period from September 11, 1973, to and including July 31, 1974, and payable to the workmen first registered on the Union's out-of-work list in that classification, and
(b) The sum of $50.00 for each day of violation, or fraction thereof, payable to the Operating Engineers' Health & Welfare Trust Fund during the period of August 1, 1974, to and including present date.
2. For all time worked by each improperly hired person in the capacity of Chainman:
(a) The sum of $7.59 per hour for each hour worked during the period from September 11, 1973, to and including July 31, 1974, and payable to the workmen first registered on the Union's out-of-work list in that classification, and
(b) The sum of $50.00 for each day of violation, or fraction thereof, payable to the Operating Engineers' Health & Welfare Trust Fund during the period of August 1, 1974, to and including present date.
11. At all times pertinent herein, plaintiff in intervention has duly performed all conditions on its part to be performed.
12. At no time during the period September 11, 1973, to the present, was Harold Hardin, any member of any crew of Hardin, or any employee of Kern Engineering an employee of Hull-Moreland & Associates, Inc.
The following Conclusions of Law insofar as they may be considered Findings of Fact are so found by this Court to be true in all respects; and the foregoing Findings of Fact, insofar as they may be considered Conclusions of Law, are so concluded from the Findings of Fact.
From the foregoing Findings of Fact, the Court makes the following Conclusions of Law:
1. Defendant Hull-Moreland & Associates, Inc., is not a shell or an instrumentality or conduit through which Herb Hull, Carl R. Moreland and Hull & Moreland Engineering, and each of them, carried on their field survey business.
2. Defendant Hull-Moreland & Associates, Inc. failed and refused to abide by its legal obligations under the collective bargaining agreement with Local 12 by improperly hiring or utilizing workmen properly dispatched from the hiring hall maintained by Local 12 to perform field survey work in the classification of Chainman for a total of 380.0 hours during the period September 11, 1973 and July 31, 1974, and such failure constituted a violation and breach of said collective bargaining agreement.
3. By reason of the breach of the collective bargaining agreement by defendant Hull-Moreland & Associates, Inc. plaintiff in intervention, on behalf of workmen first registered on its out-of-work list in the classification of Chainman, is damaged in the sum of $2,884.20.
4. Defendant Hull-Moreland & Associates, Inc. failed and refused to abide by its legal obligations under the collective bargaining agreement with Local 12 by improperly hiring or utilizing workmen not properly dispatched from the hiring hall maintained by Local 12 to perform field survey work on six days during the period August 1, 1974, through present date and such failure constituted a violation and breach of said collective bargaining agreement.
5. By reason of the breach of said collective bargaining agreement by defendant Hull-Moreland & Associates, Inc., plaintiff in intervention has been damaged in the sum of $50.00 for each day of violation, or a total of $300.00, payable to the Operating Engineers' Health and Welfare Trust Fund.
6. Defendant Hull-Moreland & Associates, Inc. did not breach said collective bargaining agreement when it utilized the services of Harold Hardin, Hardin's crew and Kern Engineering because none were employees of defendant Hull-Moreland & Associates, Inc. but rather each was a subcontractor or employee of a subcontractor.
7. Defendant Hull & Moreland Engineering, Herb Hull, and Carl Moreland are entitled to judgment in their favor and against plaintiff in intervention.
8. Each party shall bear his and its own costs of suit.
Let judgment be entered accordingly.
This action having been tried before the Court, findings of fact and conclusions of law are hereby made as follows:
FINDINGS OF FACT
1. Plaintiffs are the Trustees of the Operating Engineers Health and Welfare Fund and the Operating Engineers Pension Trust.
2. Defendant Hull & Moreland Engineering (hereinafter "partnership") was, until February 1969, a general partnership at which Mr. Herb Hull and Mr. Carl Moreland were general partners. Defendant Hull-Moreland & Associates, Inc. (hereinafter "corporation") is a corporation formed in February 1969, pursuant to the laws of the State of California. Messrs. Hull and Moreland at all times have been the sole stockholders and managing corporate officers of the corporation.
3. The partnership became party to the Agreement with Local 12 on or about December 28, 1967, upon execution of a shortform collective bargaining agreement (Plaintiffs' Exhibit 1; the "Agreement").
4. The Agreement specifically incorporated by reference the terms of the then existing Master Survey Agreement (Plaintiffs' Exhibit 2 and hereinafter referred to as the "MSA") which was effective during the period from and including July 1, 1965, through July 1, 1969; the Agreement further incorporated by reference the terms of succeeding MSA's in effect during the periods from and including July 1, 1969, through July 1, 1974, and July 1, 1974, through July 1, 1977 (Plaintiffs' Exhibits 3 and 4, respectively).
5. Each of the respective MSA's cover hours of work...
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