International Union of Operating Engineers Local 571 v. Hawkins Const. Co., 90-1150
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
| Writing for the Court | Before JOHN R. GIBSON, Circuit Judge, HEANEY; HEANEY |
| Citation | 929 F.2d 1346 |
| Parties | 137 L.R.R.M. (BNA) 2140, 30 Wage & Hour Cas. (BN 511, 118 Lab.Cas. P 10,711 INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 571, Appellant, v. HAWKINS CONSTRUCTION COMPANY, a Nebraska Corp., Appellee. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 571, Appellant, v. KIEWIT WESTERN CO., a Nebraska Corp., Appellee. |
| Docket Number | No. 90-1150,90-1150 |
| Decision Date | 12 April 1991 |
Page 1346
118 Lab.Cas. P 10,711
v.
HAWKINS CONSTRUCTION COMPANY, a Nebraska Corp., Appellee.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 571, Appellant,
v.
KIEWIT WESTERN CO., a Nebraska Corp., Appellee.
Eighth Circuit.
Decided April 12, 1991.
Page 1347
M.H. Weinberg, Omaha, Neb., for appellant.
Malcolm D. Young, Omaha, Neb., for appellee.
Before JOHN R. GIBSON, Circuit Judge, HEANEY, Senior Circuit Judge, and LARSON, * District Judge.
HEANEY, Senior Circuit Judge.
The International Union of Operating Engineers, Local No. 571 (Union) brought a Section 301 1 action against two contractors, Hawkins Construction Company (Hawkins) and Kiewit Western Company (Kiewit). The Union claimed that the defendants breached an amendment to a collective bargaining agreement by refusing to honor a twenty-five cent administrative dues checkoff the Union had requested. After a one-day bench trial, the district court entered judgment in favor of the defendants. The Union appeals; we affirm in part and reverse in part.
The Union and a multi-employer bargaining group (Heavy Contractors Association, or HCA), of which Hawkins and Kiewit were members, entered into a two-year collective bargaining agreement on April 1, 1986 (1986-1988 agreement). The 1986-1988 agreement set wage and benefit rates for the Omaha, Nebraska area.
The Union did not submit the 1986-1988 agreement to the Secretary of Labor for his consideration when establishing and publishing the Davis-Bacon rates 2 for operating engineers in the Omaha area. Due to this oversight, the Secretary could not factor in the Union's higher wage rates when calculating the prevailing wage rates in the Omaha area, and the Davis-Bacon rates for the Omaha area were $2.25 per hour lower than the rates established in the 1986-1988 agreement. This disparity allowed nonunion contractors to significantly underbid the HCA contractors for contracts subject to the Davis-Bacon Act. As a result, HCA members lost contracts and Union members lost jobs.
To remedy this problem, the Union and the HCA agreed to try to get the Davis- Bacon
Page 1348
rates raised $2.25 per hour in time for the November and December 1987 State of Nebraska bid lettings. The Union and the HCA signed an amendment to the 1986-1988 agreement on November 12, 1987, which stated:1. The Davis-Bacon rates incorporated into the project contract documents for the State of Nebraska Bid Lettings for November, 1987 and December, 1987, for those projects bid within our contract territory, shall apply for the life of the project.
2. Local 571 may adjust the fringes and wages within the predetermined wage package to the extent permitted by law and agreed to by HCA. The adjustment shall not exceed the total dollars set out in the predetermined package.
This amendment allowed the HCA to bid on November and December 1987 bid lettings at the prevailing Davis-Bacon rates even if the HCA and the Union did not succeed in getting the Davis-Bacon rates raised. 3 The HCA contractors no longer had a competitive disadvantage with respect to wage rates, and Hawkins and Kiewit each were awarded two contracts for projects in the November and December 1987 Nebraska bid lettings.
This lawsuit involves those four projects from the November and December 1987 Nebraska bid lettings. The projects were long-term road building and bridge jobs. One of the projects started between January and April 1988, while the other three started in mid-April 1988.
Hawkins resigned from the HCA in late November 1987. Kiewit followed suit a few weeks later. Both Kiewit and Hawkins continued to honor the 1986-1988 agreement until it expired on March 31, 1988. The Union entered into a new agreement with the HCA (now without Hawkins and Kiewit as members) on July 20, 1988; that agreement provided for a twenty-five cent administrative dues checkoff.
The Union could not reach a separate agreement with either Hawkins or Kiewit. When it asked Hawkins and Kiewit to institute an administrative dues checkoff for the four projects on July 20, 1988, the two contractors refused. The Union sued Hawkins and Kiewit, claiming that the November 12, 1987 amendment required Hawkins and Kiewit to institute an administrative dues checkoff plan for the four projects.
After a bench trial, the district court found for defendants Hawkins and Kiewit. 727 F.Supp. 537. The court reasoned that the amendment permitted the Union to adjust "fringes and wages within the predetermined wage package," but only by decreasing wages and increasing fringes by a corresponding amount of money (or vice-versa). The district court found that the administrative dues checkoff was not permissible under the amendment because it was a twenty-five cent per hour reduction in wages that did not increase fringe benefits by twenty-five cents. This finding rested on an assumption that the checkoff was earmarked entirely for dues or union administrative expenses, neither of which are fringe benefits. Because the district court held that the dues checkoff was not covered under the amendment, it did not find it necessary to decide whether the amendment (1) extended the 1986-1988 agreement for the life of the four projects or (2) otherwise remained in force for the life of the four projects.
We review questions of contract interpretation de novo and review the district court's factual findings under the clearly erroneous standard. See John Morrell & Co. v. Local Union 304A, 913 F.2d 544, 550-51 (8th Cir.1990), and cases cited therein. Here we face two questions of contract...
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