LOCAL NO. 571 v. Hawkins Const. Co.
| Decision Date | 03 January 1990 |
| Docket Number | No. 88-0-556,88-0-557.,88-0-556 |
| Citation | 727 F. Supp. 537 |
| Parties | INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 571, Plaintiff, v. HAWKINS CONSTRUCTION CO., Defendant. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 571, Plaintiff, v. KIEWIT WESTERN COMPANY, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Weinberg & Weinberg, M.H. Weinberg Omaha, Neb., for plaintiff.
Malcolm D. Young, Omaha, Neb., for defendant.
This is a breach of contract action involving a collective bargaining agreement between the plaintiff, the International Union of Operating Engineers Local 571 ("Union"), and the Heavy Contractors Association ("HCA"), a multiemployer bargaining unit to which the two defendants, Hawkins and Kiewit Western, belonged at the time the agreement was first put into effect. The action is brought pursuant to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. The Union is a labor organization which represents employees in an industry affecting commerce; both defendants are corporations engaged in the construction industry, and both are employers as defined in Sec. 1 et seq. of the National Labor Relations Act, 29 U.S.C. § 151 et seq.
Specifically at issue is the construction of two phrases in an amendment to the contract in question. The Union contends that the amendment had the effects of (1) extending the contract for as long as it would take to complete the designated projects, and (2) of giving the Union the authority to demand that Kiewit and Hawkins withhold a designated amount from the wages of union employees to be turned over to the Union as dues, a process known as an "administrative checkoff."
Kiewit Western and Hawkins disagree with the Union's interpretation. They argue that (1) the language in question was intended only to amend an existing contract, and had no effect on the contract's existing termination date, and (2) that the language did not, and was not meant to, encompass an administrative dues check-off.
The Court, for reasons explained in detail below, agrees with defendants Kiewit Western and Hawkins that the amendment did not provide for imposition of an administrative dues checkoff, and therefore finds for defendants. Because this finding makes the termination date of the contract irrelevant for purposes of this action, the Court need not, and will not, resolve that issue.
This Memorandum Opinion constitutes the Court's finding of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).
On April 1, 1986 the Union and the HCA entered into a collective bargaining agreement, in effect until April 1, 1988. Plaintiff's Exhibit 1. That agreement set wage and benefit rates for the period covered, but did not provide for any form of dues checkoff. Id.
On November 12, 1987, following a series of meetings, the Union and HCA entered into an agreement amending the collective bargaining agreement. Plaintiff's Exhibit 2. The amendment, in its entirety, reads as follows:
(Emphasis added). The amendment was signed for the Union by George Brown, Region 6 International Representative of the International Union of Operating Engineers, at the direction of I.U.O.E. Regional Director Jerry Sunboom, and for the HCA by Malcolm D. Young, Executive Secretary of the HCA. Also present at the November 12 meeting were James Timmins, business manager and financial secretary for Local 571, Willis Epstein, executive vice president of Hawkins, Kim Hawkins, general counsel and treasurer for Hawkins, and Curt Andersen of Vrana Construction Company.
The Davis-Bacon rates to which the amendment refers are set by the United States Department of Labor per the Davis-Bacon Act, 40 U.S.C. Secs. 276a et seq. They are the minimum rates to be paid to the various classes of mechanics and laborers employed on a project under federal contract for an amount in excess of $2,000. The rates are intended to reflect the prevailing rates for such jobs in a particular locality. The rates are applicable to projects by the State of Nebraska involving federal funds.
The Davis-Bacon rates are a minimum rate, and higher wage and benefit packages may be, and often are, negotiated by the contractors and union employees. This discrepancy had become especially acute in Nebraska, where the established Davis-Bacon rates were some $2.25 per hour lower than the rates provided for in the 1986-1988 Agreement between the Union and the HCA. Testimony of Willis Epstein, executive vice-president for Hawkins Construction, Tr. at 74. Because other, non-union, contractors could, and had, bid for projects at the minimum rate and thereby considerably underbid the HCA for projects involving federal funds, id. at 78, both the Union and the HCA had an incentive to raise the Davis-Bacon rates.
That incentive increased as the HCA prepared to bid on the November and December 1987 bid lettings by the State of Nebraska Department of Roads. In order to avoid the possibility of being underbid by non-union, non-HCA contractors, the Union and the HCA began a series of meetings with the dual purposes of (1) incorporating those rates into the existing collective bargaining agreement, thus allowing the HCA to bid at the same rate as the other contractors, and (2) coordinating efforts to raise the Davis-Bacon rates to reflect, as nearly as possible, the existing agreement rates. The November 12, 1987 amendment was the result of those meetings.
The State of Nebraska, in a document issued November 12, 1987 and dated November 13, 1987, modified the applicable wage and fringe benefit rates upward $2.25 per hour, making them equivalent to the rates that had been set in the original 1986-1988 agreement between the HCA and the Union.
Kiewit Western and Hawkins subsequently bid on the State of Nebraska Department of Roads projects, predicating their bids on the amended agreement. Kiewit Western was awarded two bids, known as the "Cornhusker Road" project and the "Vinton Street" project; Hawkins was also awarded two bids, the "Ashland Bridge" project and the "144th Street Tunnel" project. Pretrial Order at 5.
On November 30, 1987 Hawkins resigned from the HCA, and the Union was notified of that resignation. Id. On December 10, 1987, Kiewit Western also resigned from the HCA; the Union was notified on December 14, 1987. Id. at 6. Both Kiewit Western and Hawkins acknowledged that they would continue to honor the 1986-1988 agreement until its April 1, 1988 expiration. Defendant's Exhibit 1 (Kiewit Western); Defendant's Exhibit 2 (Hawkins). During the duration of the agreement both Kiewit Western and Hawkins paid the full wage and fringe package set forth in the agreement, Pre-trial Order at 6, and the package never varied. Id. at 7. Prior to and after the expiration of that agreement, the Union negotiated for new collective bargaining agreements, separate from the HCA, with both Kiewit Western and Hawkins, Pretrial Order at 6, although no new agreements were reached.
On July 20, 1988 the Union and the HCA, sans Kiewit Western and Hawkins, entered into a new collective bargaining agreement that, inter alia, expressly provided for an administrative dues checkoff. Pretrial Order at 6. At that time the Union demanded that Kiewit Western and Hawkins also institute a checkoff. Both refused, resulting in the instant litigation.
At the conclusion of the Union's case-in-chief, defendants moved for a dismissal, arguing that the Union had "failed to prove any cause of action against the defendants and prove any contract under which these defendants would be required to make a checkoff of their employees for payment to 571." Transcript at 62.
The Court reserved ruling on the motion, and defendants proceeded to proceed with their case. Such an action constitutes waiver of the motion. See Duval v. Midwest Auto City, Inc., 578 F.2d 721, 724 (8th Cir.1978):
If a defendant, after moving for involuntary dismissal at the close of the plaintiff's case, introduces evidence on his own behalf, his right to a judgment of dismissal is thereby waived.... This conclusion is not altered by the fact that the trial judge reserved ruling on the motion when made.... If defendants wished to challenge this decision, their avenue for doing so was to refuse to offer their evidence, accept a judgment for plaintiffs, and appeal it on the ground that plaintiffs' evidence was insufficient.
(Citations omitted). See also 5 Moore's Federal Practice, Para. 41.13, n. 16 (1989):
Because the defendants proceeded, following the Court's reservation of ruling, to introduce evidence on their own behalf, the Court will treat their motion as having been waived.
The Union argues that the phrase "fringes and wages" can be read to include an administrative dues checkoff, and such a...
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International Union of Operating Engineers Local 571 v. Hawkins Const. Co.
...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 w......
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