Bricklayers Local Union No. 14, Intern. Union of Bricklayers, and Allied Craftsmen, AFL-CIO v. Russell Plastering Co., AFL-CIO

Decision Date14 January 1992
Docket NumberAFL-CI,AFL-CIO,No. 90-2218,D,90-2218
Citation948 F.2d 229
Parties138 L.R.R.M. (BNA) 2747, 120 Lab.Cas. P 10,984 BRICKLAYERS LOCAL UNION NO. 14, International Union of Bricklayers and Allied Craftsmen,; Bricklayers & Trowel Trades' International Pension Fund; Bricklayers Industry Advancement Fund; Bricklayers Joint Apprenticeship Training Committee, Plaintiffs-Appellants, v. RUSSELL PLASTERING COMPANY; Plasterers' Local Union # 67, Operative Plasterers and Cement Masons International Association,, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Sheldon M. Meizlish, Detroit, Mich. (argued and briefed), for plaintiffs-appellants.

Gerald J. Richter, Federlein, Grylls & Keranen, Royal Oak, Mich., Frederick B Gold (argued and briefed), Birmingham, Mich., for defendants-appellees.

George H. Kruszewski, Rolland R. O'Hare, Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman (briefed), Detroit, Mich., for amici curiae.

Before MARTIN and NELSON, Circuit Judges, and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge.

Russell Plastering Company ("Russell"), defendant, although not a member of a contractor's association, entered into a collective bargaining agreement ("CBA") with plaintiff, Bricklayers Local Union # 14 ("Local 14"), and certain other entities comprising a Pension Fund, and "Industry Advancement Fund" 1 and an "Apprenticeship Training Committee" covering a specific work project in Washtenaw County, Michigan. The contracting association in the collective bargaining agreement established agreed work conditions with members of Local 14 in Washtenaw County. The bargaining agreement purported to relate to "employees represented by the Union."

Suit was brought for violation of the CBA under § 301 of the Labor Management Relations Act ("LMRA") and the Employee Retirement Income Security Act ("ERISA"). Plaintiffs claim Russell violated the CBA by not: (1) paying "the stated wages to the covered employees;" (2) complying with the "union dues check-off" provision; and (3) making "requisite fringe benefit contributions to plaintiff trust funds." Specifically, plaintiffs allege that Russell refused to "comply with the agreement insofar as concerns members of defendant Plasterers Local Union 67 [Local 67], with whom it also has a collective bargaining agreement." 2 Plaintiffs seek back wage adjustments, union dues, fringe benefit contributions from and after March, 1987, and an injunction requiring future payments. The described "geographical jurisdiction" of the Local 14 CBA for bricklayers and plasterers includes Washtenaw County and certain townships in Livingston County, Michigan. Local 67's area was the Detroit trade area (Wayne County and parts of Macomb, Monroe, and Oakland Counties). Local 67's CBA bound employers such as Russell to pay all fringe benefits provided for in the aforesaid geographic area for services performed by plasterers and masons. Russell filed a cross claim against Local 67 based on Local 14's effort "to collect certain contributions Russell has already paid to Local 67," and Russell sought indemnification on that account. Russell recognized Local 67 as the "sole Collective Bargaining Agent for all journeymen and apprentice plasterers ... on any and all work described in Article X," which referred again to the geographic area described as the Detroit trade area.

Local 14's CBA also recognized it as "the sole collective bargaining agent for the construction craft employees who are represented by the Union on ... building construction projects ... within the geographical jurisdiction of the Union (Washtenaw County)." It required also that "no later than eight days" after the effective date of the agreement that "all present employees must, as a condition of continued employment, be or become members of the Union." There was an extensive grievance and arbitration provision as to "any dispute" arising from "interpretation, application, or claimed violation of any provision of that Agreement."

At the end of Local 14's agreement, however, was a "memorandum of agreement" with "non-association contractors", such as Russell, which was not alleged to be a member of the Washtenaw Contractors Association, Inc., the party to the CBA. The non-association contractors' portion of the agreement referred to these non-members which agreed "to be bound by all terms and conditions ... and to become a party hereto." Russell further agreed, as a non-association entity, to adopt and accept "the attached agreement (Local 14 CBA) in its entirety as the basis upon which it will employ members of Local Union No. 14." (Emphasis added). Russell further agreed "to be bound by the terms of the Trust Agreement." If Russell "should willfully violate this Agreement in any way," there was provided a 48 hour notice period for correction, after which the union "will take whatever steps are necessary to compensate for violation."

Both parties moved for summary judgment, maintaining that the legal issue in controversy, involving interpretation of Local 14's CBA, should be resolved in their favor. The matter was referred to a magistrate who recommended in a lengthy report that plaintiffs' motion be denied and defendant Russell's motion be granted. Despite plaintiffs' objections thereto, the district court accepted the recommendation and entered summary judgment for Russell. The magistrate observed that "members of both unions have worked, apparently side by side, on Russell's projects, and Local 14 expressly consented to the Local 67's members' participation in Russell's construction projects in Washtenaw County."

The magistrate expressed the nub of this controversy plainly:

The substance of this dispute plainly centers on whether the collective bargaining agreement between Russell and Local 14 gives Local 14 exclusive rights to all fringe benefits earned by all workers within its territory or only over those earned by its own members. In sum, it is plaintiffs' position that fringe benefits payments are to be made to Local 14's trust funds for any employee performing work within its territory, regardless of the affiliation of the worker. Defendants' position is that fringe benefits for a particular employee are to be paid to the trust funds covering that employee, regardless of where the work was performed.

The magistrate concluded that "it would be unjust to interpret the agreement's provision relating to its geographic parameters in the manner proposed by the plaintiffs." The magistrate, then, used what he felt was a "common sense, equitable approach" to reach the result urged by defendants: "the payment of fringe benefits by the employer should correspond with the affiliation of each worker; that attributable to the work of a Local 67 member should be paid to his or her pension fund." Neither the magistrate nor the district court made any reference to that part of Local 14's agreement described as the "non-association contractors agreement." The district court had previously ruled that Local 14 had no claim because it had failed to exhaust the grievance-arbitration process of the CBA. In its brief filed on appeal, Local 14 referred to the language of Article XXIII:

If an Employer fails to pay the wages, fringes and penalties as provided in this Agreement, the Union may take whatever steps are necessary, including, but not limited to the withdrawal of man power to secure compliance with this Agreement, any other provision hereof to the contrary notwithstanding.... The delinquent Employer will be responsible for any losses incurred by the Employee, as a result of such action as well as costs of collection including but not limited to attorney fees and liquidated damages and may be required to make weekly fringe benefit payments.

We are disposed to agree with Local 14 that it was properly before the court because of the dispute over wages and fringe benefits concerning Local 67 members. We conclude that the union could, under the agreement, challenge the issue in district court.

We are of the opinion, however, that the non-association...

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