Gariup v. Birchler Ceiling & Interior Co., Inc.

• Decision Date: 18 November 1985
• Docket Number: No. 84-2502,84-2502
• Citation: 777 F.2d 370
• Parties: 120 L.R.R.M. (BNA) 3428, 103 Lab.Cas. P 11,700 Michael GARIUP, et al., Plaintiffs-Appellees, v. BIRCHLER CEILING & INTERIOR COMPANY, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 370

777 F.2d 370

120 L.R.R.M. (BNA) 3428, 103 Lab.Cas. P 11,700

Michael GARIUP, et al., Plaintiffs-Appellees, v. BIRCHLER CEILING & INTERIOR COMPANY, INC., Defendant-Appellant.

No. 84-2502.

United States Court of Appeals, Seventh Circuit.

Argued April 16, 1985.

Decided Nov. 18, 1985.

Pamela P. Kosenka, Stults, Custer, Kutansky & McClean, Gary, Ind., for defendant-appellant.

Stephen J. Feinberg, Asher, Pavalon, Gittler & Greenfield, Chicago, Ill., for plaintiffs-appellees.

Before CUDAHY and COFFEY, Circuit Judges, and GARZA, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

Birchler Ceiling & Interior Company ("BCI") appeals the decision of a magistrate for the United States District Court for the Northern District of Indiana finding that Birchler owed the Construction Workers Pension Trust Fund ("Fund") approximately $9,800 for delinquent contributions to the trust fund. We affirm.

I

The record reveals that BCI was incorporated under the laws of Indiana in January, 1979. Shortly thereafter, a representative of Local Union 81 of the Laborer's International Union of North America ("Union") sent several documents to BCI. The documents included (1) a copy of the Union's 1976-1979 collective bargaining agreement with the Associated General Contractors of Indiana, Inc., ¹ the multi-employer bargaining association, (2) a form entitled "Acceptance of Working Agreement" indicating that the signor adopted the Local 81's collective bargaining agreement with the employer's association, and (3) two "Assent of Participation" forms, both stating that the signor had agreed to contribute to the Fund. On May 23, 1979, Robert Birchler, the President of Birchler Ceiling Interior, shortly after employing two union workers, signed two Assent of Participation forms and returned them to the Union indicating BCI's intent to contribute to the Fund. ² Robert Birchler also returned without signing the Union's Acceptance of Working Agreement form, and inserted his federal employer identification number on this form. ³

BCI continued to employ the two union members until January 1983. During this period the Union negotiated successive collective bargaining agreements with the Associated General Contractors of Indiana, Inc., upon the expiration of the old agreements. The original 1976-1979 agreement, which expired on April 1, 1979, provided that contributions to the pension for each employee would be $.55 per hour while the 1979-1982 ⁴ and 1982-1985 collective bargaining agreement provided for contributions to the pension fund at the rate of $.75 per hour per employee. From May 1979 until January 1981, BCI submitted contribution reports and payments to the pension fund based upon the contribution rates listed in the collective bargaining agreements. BCI ceased to make its contributions to the pension fund in February 1981 although it continued to employ the two union members until January 1983.

As a result of Birchler Ceiling Interior discontinuing its contributions to the Fund for the period of time from February 1981 to January 1983, the Fund filed suit in the district court to collect the delinquent contributions; and upon agreement of the parties the case was referred to the magistrate for trial. At trial, the executive secretary of BCI, Cecilia Sobierajski, testified that it was BCI's policy to comply with the terms of the collective bargaining agreement. Thus she would verify any increase in wages and benefits with the collective bargaining agreements and would then make the appropriate increases in the contributions to the Fund and adjust the employees' pay checks accordingly. Further Birchler testified that he executed the Assent of Participation form and complied with the terms of the collective bargaining agreements, stating that he did it "to satisfy the Union, you know, to whatever extent they wanted me to so that I could keep peace with them."

The magistrate found that "[b]ecause the collective bargaining agreements effective 1979-1982 and 1982-1985 were merely continuations of the earlier agreement ... and because the defendant adopted these subsequent contracts through its course of conduct, the defendant was obligated to pay pension contributions at the rates specified in each of the contracts in effect at the time it employed laborers." The magistrate then totalled the hours the union employees worked during the period of February 1981 to January 1983, applied the $.75/hour pension contribution rate provided in the 1979-1982 and 1982-1985 collective bargaining agreements and determined that BCI's delinquency in payments to the Fund totaled $5,717. The magistrate also assessed a late charge for the delinquent contributions in the amount of $4,118 as provided for in the pension fund agreement. ⁵

On appeal, BCI denies liability and contends it is not accountable for the delinquent contributions since BCI and the trustees of the Fund failed to comply with Section 302(c)(5)(B) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 186(c)(5)(B), requiring that the details of any payments made to any employee representatives be "specified in a written agreement with the employer." Birchler Ceiling Interior also alleges that the trustees failed to establish at trial that it was obligated to make contributions to the Construction Workers Pension Trust Fund as the collective bargaining agreements that it allegedly became a party to referred to a different pension fund, namely the Hod Carriers Pension Fund ⁶ and the trustees failed to introduce any evidence of this fund's existence. Finally, BCI contends that the magistrate incorrectly determined the amount due the pension fund for the alleged delinquent payments.

II

Before addressing BCI's argument that the Fund failed to comply with section 302(c)(5)(B), it is important to note that BCI does not challenge the magistrate's finding that it became a party to the collective bargaining agreements. It is "well established that a collective bargaining agreement is not dependent on the reduction to writing of the parties' intention to be bound," Capitol-Husting Co., Inc. v. NLRB, 671 F.2d 237, 243 (7th Cir.1982), rather "[a]ll that is required is conduct manifesting an intention to abide and be bound by the terms of an agreement." Id.; ⁷ see also NLRB v. Haberman Construction Co., 641 F.2d 351, 355-57 (5th Cir.1981); Carpenters Amended & Restated Health Benefit Fund v. Holleman Construction Co., 751 F.2d 763, 770 (5th Cir.1985); Trustees of Atlanta Iron Workers, Local 387 Pension Fund v. So. Stress Wire Corp., 724 F.2d 1458, 1459 (11th Cir.1983). ⁸ For example, in Trustees of Atlanta, the Eleventh Circuit held that the employer, Southern Stress, had agreed to the collective bargaining agreement with the union through its course of conduct "Southern Stress secured virtually all of its labor from the union hiring hall. Southern Stress's pay to its employees was in conformance with the pay scale established by the collective bargaining agreements. Southern Stress made fringe benefit reports and paid monies to and for the benefit of its employees to the trust fund for hospitalization benefits and frequently for other trust benefits. Trustees conducted at least two audits of Southern Stress's records...."

Trustees of Atlanta, 724 F.2d at 1460.

Similar to the holding of the court in Trustees of Atlanta, the magistrate in this case examined BCI's conduct and found that BCI agreed to the terms listed in collective bargaining agreements governing contributions to the Fund as follows:

"The defendant's execution of the Assent of Participation, its submission of the completed but unsigned Acceptance of Working Agreement, its immediate commencement of contribution reports and payments, and its payment of wages at the rate called for in the agreements, are all indicative of the defendant's intent to abide by the agreements. Further, defendant's purpose in adhering to the provisions of the agreements was to accept the benefits of the agreements, the maintenance of labor peace, strongly suggesting that the defendant expected by its actions it had become a party to the contract."

In the instant case, BCI signed the Assent to Participate form indicating its intent to contribute to the Fund. Further, BCI's conduct in returning the completed, yet unsigned, Acceptance of Working Agreement form to the Union with the employer's identification number entered thereon, indicates at least an intention on BCI's part to adopt the 1976-1979 collective bargaining agreement as only BCI and the Federal government had access to this identification number. ⁹ The magistrate also noted that the "collective bargaining agreements effective 1979-1982 and 1982-1985 were merely a continuation of the earlier agreement with minor amendment thereto, including increased wages and fringed benefits, ..." Celia Sobierajski, BCI's executive secretary, testified that she verified the amounts listed in these agreements with the union. BCI then contributed to the pension fund for 1 and 1/2 years at the $.75 per hour/per employee amount listed in the agreements. Further, she testified that BCI paid its union employees' wages commensurate with those wages provided for in the 1979-1982 and 1982-1985 collective bargaining agreements respectively. The magistrate concluded that this conduct manifested an intention on the part of BCI to become a party to the agreements for that period of time when it employed the union members. Finally, Birchler, the President of BCI, testified that "[m]y intention was to satisfy the Union, you know, to whatever extent they wanted me to so that I could keep peace with them." (Tr. at 178). Thus, the magistrate determined that BCI had accepted the benefits of the labor contract and that through its course of conduct "the defendant expected that it had become a party to the contract."

In its defense, Birchler Ceiling Interior argues that the written agreement requirement of section 302...