Carpenters 4 Northern Cal. Counties Conf. Bd. v. Jones & Anderson

• Decision Date: 17 April 1987
• Citation: 195 Cal.App.3d 1221,236 Cal.Rptr. 321
• Court: California Court of Appeals Court of Appeals
• Parties: , 125 L.R.R.M. (BNA) 3455, 109 Lab.Cas. P 10,666 CARPENTERS 46 NORTHERN CALIFORNIA COUNTIES CONFERENCE BOARD, Plaintiff and Appellant, v. JONES & ANDERSON, Defendant and Respondent. A032291.

Page 321

236 Cal.Rptr. 321

195 Cal.App.3d 1221, 125 L.R.R.M. (BNA) 3455,

109 Lab.Cas. P 10,666

CARPENTERS 46 NORTHERN CALIFORNIA COUNTIES CONFERENCE BOARD, Plaintiff and Appellant, v. JONES & ANDERSON, Defendant and Respondent.

A032291.

Court of Appeal, First District, Division 2, California.

April 17, 1987.

Robert M. Hirsch, San Francisco, for plaintiff and appellant.

Mark D. Jordan, Santa Rosa, for defendant and respondent.

KLINE, Presiding Justice.

Carpenters 46 Northern California Counties Conference Board (hereinafter "Carpenters") appeals a judgment denying its petition for confirmation of an arbitration award against Jones & Anderson.

FACTUAL & PROCEDURAL BACKGROUND

Jones & Anderson is a contractor involved in construction activities in Sonoma County, California. Carpenters is an organization comprised of affiliated local unions and district councils which represent workers employed as carpenters.

On June 16, 1980, Carpenters entered into a labor agreement with Northern California Home Builders Conference and the California Contractors Council Incorporated and their respective members. The agreement was titled "Carpenters Master Agreement for Northern California" (hereinafter "Master Agreement") and was effective from June 16, 1980 through June 15, 1983. Jones & Anderson did not sign this Master Agreement, but admits that it signed a memorandum agreement binding it to the 1980-1983 Master Agreement.

The memorandum or short form agreement executed by Jones & Anderson, colloquially referred to as a "me too" agreement, was never introduced into evidence and its terms are nowhere set forth in the record. ¹

Section 2 of the Master Agreement was titled "Term of Agreement" and provided in pertinent part: "This Agreement shall remain in full force and effect from the 16th day of June, 1980, through the 15th day of June, 1983, and shall continue thereafter from year to year unless either party, not more than ninety (90) days nor less than sixty (60) days prior to the 15th day of June of any subsequent year, serves written notice on the other of its desire to change, modify, amend, supplement, renew or extend this Agreement." (Italics added.)

On April 15, 1983, a successor Master Agreement was entered into between Carpenters and the "BUILDING INDUSTRY ASSOCIATION OF NORTHERN CALIFORNIA, as the successor to the Northern California Home Builders Conference, on behalf of its authorizing members of the California Contractors Council, Inc. and Millwright Employers Association...." It provided in pertinent part: "This Agreement amends, modifies, supplements, changes, extends and renews the Agreement dated June 16, 1971, June 16, 1974, June 16, 1977, June 16, 1980, and is effective June 16, 1983." Section 2 provided: "This Agreement shall remain in full force and effect from the 16th day of June, 1983, through the 15th day of June 1986, and shall continue thereafter from year to year unless either party, not more than ninety (90) days nor less than sixty (60) days prior to the 15th day of June of any subsequent year, serves written notice on the other of its desire to change, modify, amend, supplement, renew or extend this Agreement."

In late March or early April 1984, Jones & Anderson advised Carpenters by letter that "We hereby cancel our contract agreement (set forth in the Carpenters Master Agreement for No. Calif., June '80 to '83, effective 5/3/82) with the 'Union', defined in our memorandum agreement. [p] Please notify us before April 15th if further action by us is necessary.'' Carpenters responded that the notice of cancellation was untimely and that the existing Master Agreement "requires by its terms to remain in effect until June 15, 1986."

The underlying grievance occurred on June 18, 1984, when Carpenters challenged Jones & Anderson's hiring of non-union employees at two job sites. In an exchange of correspondence, Jones & Anderson responded to the grievance by sending a letter through their attorney to Carpenters, advising the union that the collective bargaining agreement had expired on June 15, 1984. Jones & Anderson stated that "it was ready willing and able to commence collective bargaining;...." Carpenters replied that the termination was unacceptable as the Master Agreement had been amended and renewed and that a contractor could not cancel the agreement except during the "window" period immediately preceeding the termination date of the Master Agreement.

On August 15, 1984, the arbitration hearing was held. The arbitrator found that "the employer is party to and bound to the current Master Agreement." The arbitrator also found that Jones & Anderson had violated the Master Agreement and that the grievance filed by Carpenters was meritorious and ordered Jones & Anderson to comply with the Master Agreement. The award included an order that Jones & Anderson make whole employees on the union's out-of-work list by paying back wages and fringe benefits.

Carpenters thereafter petitioned the superior court for confirmation of the arbitration award. The petition was denied upon the ground that "The contract between the parties was terminated as of June 15, 1984 by notice given under the terms of the agreement by Respondent to Petitioner. The grievance of June 18, 1984 was beyond the term of the contract. The arbitrator exceeded his jurisdiction." Findings of fact and conclusions of law were waived by the parties and a formal order denying the petition for confirmation of the award was filed on July 23, 1985. The court awarded costs and attorney fees to Jones & Anderson. A timely notice of appeal followed.

DISCUSSION

1. Whether Jones & Anderson is bound to the 1983-1986 Master Agreement.

As this case involves the exercise of a state court's concurrent jurisdiction under section 301 of the Labor-Management Relations Act (29 U.S.C. § 185), we must apply federal substantive law. (Northern Cal. Dist. Council of Laborers v. Robles Concrete Co. (1983) 149 Cal.App.3d 289, 292, 196 Cal.Rptr. 776 [and cases there cited]; Rebeiro v. Nor-Cal Integrated Ceilings (1982) 135 Cal.App.3d 522, 528, 187 Cal.Rptr. 256; Irwin v. Carpenters Health and Welfare Trust Fund (9th Cir.1984) 745 F.2d 553, 555; see Carpenters 46 Northern Cal. Counties Conf. Bd. v. Valentine (1982) 131 Cal.App.3d 534, 540-541, 182 Cal.Rptr. 500.)

"Memorandum or short-form agreements of the type here in issue are commonly used in the construction industry, and courts have repeatedly recognized the validity of these agreements. (Const. Teamsters, etc. v. Con Form Const. Corp. (9th Cir.1981) 657 F.2d 1101; Seymour v. Coughlin Co. (9th Cir.1979) 609 F.2d 346; Ted Hicks and Associates, Inc. v. N.L.R.B., supra [5th Cir.1978], 572 F.2d 1024, 1025; N.L.R.B. v. R.J. Smith Const. Co., Inc. (D.C.Cir.1976) 545 F.2d 187; Bugher v. Southland Fabricators & Erectors, Inc. (W.D.La.1978) 452 F.Supp. 870; accord, Scenic Land Properties v. Local 162 (1979) 103 L.R.R.M. 2127, affd. without opn. (9th Cir.1981) 661 F.2d 942.) The above authorities clearly indicate that a signatory to a memorandum agreement can agree to be bound by future modifications, extensions and renewals of the master agreement. [p] Analysis of the agreements involved provides the best evidence of the intent of the parties. (Const. Teamsters, etc. v. Con Form Const. Corp., supra, at p. 1103.)" (Rebeiro v. Nor-Cal Integrated Ceilings, supra, 135 Cal.App.3d 522, 529, 187 Cal.Rptr. 256.)

Here, in the absence of the memorandum agreement executed by Jones & Anderson, the only agreements before us are the 1980-1983 and 1983-1986 Master Agreements. We look to the language of the 1980-1983 Master Agreement to determine whether Jones & Anderson effectively terminated their labor agreement. The language of this Master Agreement permits the employer to terminate by serving written notice on the union 60-90 days prior to June 15th of any succeeding year. No other language in the 1980-1983 Master Agreement nullifies this provision in the event of renewal of or amendment to that Master Agreement. Accordingly, we conclude that Section 2 authorized Jones & Anderson to terminate the agreement, as it did, during the "window" period in 1984.

Our conclusion is in accord with Carpenters Local 743 v. Armstrong & Smith Construction (1982) 261 NLRB No. 28; 110 L.R.R.M. 1085 (hereafter Armstrong & Smith ). There the memorandum agreement signed by the employer during the term of a 1974-1977 Master Labor Agreement provided: " 'This Memorandum Agreement shall remain in full force and effect until June 15, 1977, and shall continue from year to year thereafter unless either party shall give written notice to the other of a desire to change or cancel it at least sixty (60) days prior to June 15, 1977, or June 15, of any succeeding year.... The Contractor and the Unions shall be bound by any renewals or extensions of the Master Labor Agreement and the Trust Agreement, or any new agreements unless an appropriate written notice is given to the other party at least sixty (60) days prior to June 15, 1977, or any subsequent year of their intent not to be bound by any new, renewed or extended Agreement. [Emphasis supplied.]' " ( Armstrong and Smith, supra, at p. 1086.) The NLRB held that employers were not bound by the memorandum agreement to the term of the successor 1977-1980 Master Labor Agreements, where they had furnished written notices of termination in March and April 1979. The Board held that the "express language of the termination provisions of the memorandum agreements refutes the contention of Respondents and the findings of the Administrative Law Judge that those agreements can be terminated only during the year in which the underlying Master Labor Agreement expires." (Id., at p. 1087.) Thus employer notices of termination in March and April 1979 were held effective.

The Board also pointed out that, "the resolution of the issue involved herein is not materially aided by prior cases involving...