Arizona Laborers, Teamsters and Cement Masons Local 395 Health and Welfare Trust Fund v. Conquer Cartage Co.

• Decision Date: 22 February 1985
• Docket Number: 83-2094,Nos. 83-2072,s. 83-2072
• Citation: 753 F.2d 1512
• Parties: 118 L.R.R.M. (BNA) 3391, 40 Fed.R.Serv.2d 1433, 102 Lab.Cas. P 11,388, 103 Lab.Cas. P 11,639, 6 Employee Benefits Ca 1453 ARIZONA LABORERS, TEAMSTERS AND CEMENT MASONS LOCAL 395 HEALTH AND WELFARE TRUST FUND, a trust, et al., Plaintiffs/Counterdefendants/Appellants, v. CONQUER CARTAGE COMPANY, an Arizona corporation, Defendant/Counterclaimant/Appellee. ARIZONA LABORERS, TEAMSTERS AND CEMENT MASONS LOCAL 395 HEALTH AND WELFARE TRUST FUND, a trust, et al., Plaintiffs/Counterdefendants/Appellees, v. CONQUER CARTAGE COMPANY, an Arizona corporation, Defendant/Counterclaimant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1512

753 F.2d 1512

118 L.R.R.M. (BNA) 3391, 40 Fed.R.Serv.2d 1433,

102 Lab.Cas. P 11,388, 103 Lab.Cas. P 11,639,

6 Employee Benefits Ca 1453

ARIZONA LABORERS, TEAMSTERS AND CEMENT MASONS LOCAL 395

HEALTH AND WELFARE TRUST FUND, a trust, et al., Plaintiffs/Counterdefendants/Appellants, v. CONQUER CARTAGE COMPANY, an Arizona corporation,

Defendant/Counterclaimant/Appellee.

ARIZONA LABORERS, TEAMSTERS AND CEMENT MASONS LOCAL 395

HEALTH AND WELFARE TRUST FUND, a trust, et al., Plaintiffs/Counterdefendants/Appellees, v. CONQUER CARTAGE COMPANY, an Arizona corporation,

Defendant/Counterclaimant/Appellant.

Nos. 83-2072, 83-2094.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 1984.

Decided Feb. 22, 1985.

Gerald Barrett, David L. Niederdeppe, Ward & Keenan, Ltd., Phoenix, Ariz., for Arizona Laborers, etc.

John R. Tellier, Phil B. Hammond, Evans, Hammond & Milliken, Phoenix, Ariz., for Conquer Cartage Co.

Appeal from the United States District Court for the District of Arizona (Phoenix).

Before CHOY, PREGERSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Representatives of various joint labor-management trust funds filed claims based on section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 (1982), and section 515 of the Employee Retirement Income Security Act, 29 U.S.C. Sec. 1145 (1982), to enforce the provisions of a collective bargaining agreement requiring trust fund contributions by the employer. The defendant employer filed a counterclaim contending that its obligation to contribute to the trust funds had ended a number of years earlier when, according to the employer, the agreement between the two parties to this dispute expired. The disputed agreement incorporated by reference a series of master agreements between various contractor associations and the unions. The district court concluded that the employer was not obligated to make the contributions and granted summary judgment for the employer on the plaintiffs' claims. We hold that the district court erred.

I. FACTS

The facts are not in dispute. The plaintiffs (hereinafter the "Trust Funds") represent joint labor-management trust funds established in accordance with section 302 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 186 (1982). Each of the trust funds is a multi-employer plan as defined by section 4 of the Employer Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1003. The defendant employer, Conquer Cartage Company, (hereinafter the "Employer") is an Arizona corporation engaged in the construction business.

The Arizona Master Labor Agreements are a series of collective bargaining agreements entered into by several construction contractor associations and several labor unions, including a local of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (hereinafter the "Teamsters"). Contributions to Teamster trust funds are in dispute here. The Master Labor Agreements, which date back to at least 1965, have traditionally established the prevailing wage rates for covered employees, as well as the rates at which the contractors are required to contribute to trust funds that finance fringe benefits.

The 1965 Master Labor Agreement terminated on May 31, 1970. A successor agreement went into effect on June 1, 1970 and expired on June 1, 1973. On that date, a Master Labor Agreement covering the period from 1973 to 1976 went into effect. That Agreement set May 31, 1976 as the date of expiration. As of that date, the unions and the various contractor associations were negotiating, but had not yet arrived at a new agreement. On June 2, 1976, the unions began to engage in strike activity. The unions and the contractor associations subsequently reached an agreement that became effective on July 9, 1976, and terminated on May 31, 1979. A new Agreement came into effect on June 1, 1979, and, by its terms, expired on May 31, 1982.

In 1965, the Employer, although not a member of any of the contractor associations that negotiated the Master Labor Agreements, executed a Memorandum Agreement that incorporated the 1965-70 Arizona Master Labor Agreement and all of its successor agreements. ¹ A memorandum agreement of this nature is commonly referred to by labor and management representatives as a "me-too agreement." Under the Master Labor Agreements, contributions to various trust funds were required in order to provide fringe benefits to eligible employees. ² The Employer contributed to the trust funds and honored all other provisions of the 1965-70, 1970-73, 1973-76, 1976-79, and 1979-82 Master Labor Agreements. However, when in 1981 the Trust Funds requested a payroll audit to ensure that the Employer was contributing the required amounts to the trust funds, the Employer took the position that, by its terms, the Memorandum Agreement had expired in 1976; on that basis, the Employer contended that it was not then, and had not for the preceding five years been, required to contribute to the Trust Funds.

The Trust Funds filed this action to enforce the Memorandum Agreement's provisions requiring the Employer to make trust fund contributions. Alleging that the contributions made during the six-month period immediately prior to the filing of its counterclaim were made only because of a "mistake of fact" regarding the continued existence of the Memorandum Agreement, the Employer filed a counterclaim based on 29 U.S.C. Secs. 1103(c)(2)(A) & 1132, seeking recovery of those particular contributions. ³

The Trust Funds and the Employer filed cross motions for summary judgment. In support of its motion, the Trust Funds contended that section 8(d) of the National Labor Relations Act requires the Employer to give 60 days' notice of its intent to terminate the agreement and, because the Employer failed to give the requisite notice at any time prior to the filing of the counterclaim, the Memorandum Agreement remained in effect at least until then. ⁴ The Employer argued that it was entitled to summary judgment on the ground that a termination provision contained in one section of the Memorandum Agreement was triggered in 1976 by the one month gap between the expiration date of the 1973-76 Master Labor Agreement and the date that the 1976-79 Agreement went into effect. Accordingly, it contended, the "me-too agreement" terminated at that time.

The district court first ruled that it was without jurisdiction to consider the Trustee's statutory argument and then, citing the section of the agreement relied upon by the Employer, held that the Memorandum Agreement terminated in 1976. It therefore denied the Trust Funds' motion and granted summary judgment for the Employer. ⁵ The Trust Funds appeal the latter order.

II. STANDARD OF REVIEW

In reviewing a district court's order granting summary judgment, we must view the evidence, and make all inferences from that evidence, in the light most favorable to the party against whom summary judgment was granted. See, e.g., Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328-29 (9th Cir.1983). In that light, we must determine whether there is any genuine issue of material fact in dispute and whether the moving party is entitled to judgment as a matter of law. See M/V American Queen v. San Diego Marine Construction Corp., 708 F.2d 1483, 1487 (9th Cir.1983). We have emphasized that "[w]here a contract's meaning is not clear on its face, its interpretation depends upon the parties' intent at the time it was executed, which is an issue for the trier of fact." Laborers Health & Welfare Trust Fund v. Kaufman & Broad, 707 F.2d 412, 418 (9th Cir.1983) (citations omitted).

III. THE "TERMINATION" OF THE MEMORANDUM AGREEMENT

A. The National Labor Relations Act as a Bar to Termination of the Memorandum Agreement.

Section 8(d)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158(d)(1), requires a party seeking to terminate or modify a collective bargaining agreement to serve a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification.

The Trust Funds contend that, because the employer failed to give the requisite 60-day notice under section 8(d)(1), the Memorandum Agreement could not have lawfully terminated in 1976, and thus it remained in effect. Because this argument is based entirely on the allegation that the employer committed an unfair labor practice under the NLRA, we lack jurisdiction to address its merits.

In Cement Masons Health & Welfare Trust Fund for Northern California v. Kirkwood-Bly, Inc., 520 F.Supp. 942 (N.D.Cal.1981), affirmed for reasons stated in district court's opinion, 692 F.2d 641 (9th Cir.1982), the district court considered a jurisdictional question similar to the one before us: whether a federal court had jurisdiction over a claim for recovery of delinquent trust fund contributions based on section 8(a)(5) of the NLRA, 29 U.S.C. Sec. 158(a)(5). In Cement Masons, the representatives of several trust funds claimed that the employer violated section 8(a)(5) by unilaterally changing the terms and conditions of employment after expiration of the collective bargaining agreement and during negotiations for a new one. Given the violation of section 8(a)(5), the representatives of the trust funds argued that the employer should be able to recover the delinquent contributions. 520 F.Supp. at 944.

The district court based its decision on San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), in which the Supreme Court held that "[w]hen an activity is arguably the subject of Sec. 7 or Sec. 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor...