May v. Interstate Moving & Storage Co.

• Decision Date: 23 July 1984
• Docket Number: No. 82-2542,82-2542
• Citation: 739 F.2d 521
• Parties: Robert F. MAY, Deputy Manager of the Western Conference of Teamsters Pension Trust Fund, Plaintiff-Appellant, v. INTERSTATE MOVING & STORAGE CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 521

739 F.2d 521

Robert F. MAY, Deputy Manager of the Western Conference of Teamsters Pension Trust Fund, Plaintiff-Appellant, v. INTERSTATE MOVING & STORAGE CO., Defendant-Appellee.

No. 82-2542.

United States Court of Appeals Tenth Circuit.

July 23, 1984.

Julianne McCabe, Boulder, Colo., for plaintiff-appellant.

David Evans of Bagley, Hickey, Evans & Statkus, Cheyenne, Wyo., for defendant-appellee.

Before BARRETT, BREITENSTEIN and McKAY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This is an action by plaintiff-appellant, May, as Deputy Manager of the Western Conference of Teamsters Pension Trust Fund who is authorized to bring the action by the Trustees of the Fund. The action was originally brought in state court in Denver, Colorado, and was removed on diversity grounds pursuant to 28 U.S.C. Sec. 1441. Jurisdiction is vested by the provisions of the Employee Retirement Income Security Act, 29 U.S.C. Secs. 1132(a)(3)(ii) and (e)(1). The Fund brought this action to recover $15,156.26 allegedly due it from defendant-appellee, the Interstate Moving and Storage Co., a Wyoming corporation. The jury returned a verdict of $5,389.27. To this amount the court added interest and gave the plaintiff judgment for $8,854.31. It also gave plaintiff $3,500 for attorney fees.

Prior to 1976, the Company and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 307 of Cheyenne, Wyoming, entered into a series of Collective Bargaining Agreements, CBAs, which each contained a provision relating to contributions by the Company to the Teamsters Pension Fund. The CBA effective September 1, 1965 to March 1, 1971, Deft's Ex. P, provided in its Art. 30 that:

"The Employer shall not be obligated for the life of this agreement to pay the premiums for part-time workers on the Pension Plan as set forth above."

Plaintiff's Exs. 4, 5, and 6 cover respectively the periods March 1, 1976 to March 1, 1977, March 1, 1977 to March 1, 1980, and March 1, 1980 to March 1, 1983, and each provides in its Art. 27 that:

"Regular employees are those employees who are so designated by the Employer at the inception of this Contract and those employees who have worked for the Employer and have acquired 60 days or more of eight (8) hours each, of employment with the Employer, within a 3 month period."

The same agreements provide in their Art. 30 that:

"Each Employer who is party to this Agreement shall contribute to the Western Conference of Teamsters Pension Trust Fund, the provisions of which the undersigned parties agree to accept and to abide by the rules and regulations established or as may be established by the Trustees of such Trust Fund, the applicable monthly sum as listed below for each regular employee covered by this Agreement who is on the payroll of the Employer at any time during such month."

(Effective dates and amounts vary.)

"Contribution for employees if the work is less than one month, the applicable weekly sum as listed below for each regular employee covered by this Agreement who is on the payroll of the Employer at any time during such week."

(Effective dates and amounts vary.)

"Contributions for each casual employee shall be the applicable sum as listed below for each day worked."

(Effective dates and amounts vary.)

"Contributions for casual employees used on a four (4) hour basis shall be paid at one-half ( 1/2) the amount of the above rates."

The word "casual" is not defined in the above mentioned agreements. The witness Cooper, the president of Interstate, testified that Interstate had no casual employees working for it. Tr.Vol. IV, p. 149. Plaintiff argues that the Employer owes contributions to the Trust Fund for all of its collective bargaining agreement unit employees for every hour worked by those employees. The employer admits that the CBAs call for contributions for regular employees and casual employees. It says that it has no casual employees but only part timers.

Plaintiff says that the contract between the parties was not ambiguous and, therefore, no jury question was presented. In making this argument, the Trust Fund relies on a separate set of documents, the pension certifications, Pltfs.Exs. 7-9. In each of these, the union and employer certified that a written pension agreement was in effect, generally included in a collective bargaining agreement, and that this agreement conformed to the Trustee Policy on Acceptance of Employer Contributions. The union and employer also agreed to be bound by and become parties to the trust declaration. Plaintiff argues that the CBAs, pension certifications, and trust declaration should be construed as one contract. The jury was so instructed in Instruction 2, R.Vol. I, p. 42, which stated that, "There is only one contract in this case and it is the sum total of the written agreements of the parties."

The pre-March 1972 CBAs between Local 307 and the moving and storage industry in Cheyenne had a clause that excluded pension payments for part-time employees. In March 1972 the CBA was amended to require pension contributions on casual employees. Local 307's representative Lloyd Long testified that regular employees were seniority employees who worked a forty-hour week, part-time employees worked more regularly than casuals but less than a forty-hour week, and casuals were persons who worked infrequently. Tr.Vol. IV pp. 95-97. Interstate president Cooper agreed with these definitions, Tr.Vol. IV, p. 149. The employer argues that because the pension clause requires contributions for regulars and casuals and the company does not employ casuals, but only part-timers, the contracts are ambiguous. In the light of this distinction between part-timers and casuals, supported by the change in language from prior contracts, the CBAs were ambiguous.

No language in either the Trust Policy on Acceptance of Employer Contributions or the Trust Fund Agreement and Declaration of Trust explains this ambiguity or requires a different result. Plaintiff argues that the provisions of the Trust Policy on Acceptance of Employer Contributions are violated if part-time employees are not covered until they reach seniority status. See Pltf's Ex. 18, Provisions 3 and 4; Appellant's Reply Brief at 4. These provisions are simply illustrative of the types of clauses that would result in possible rejection of a payment plan by the trustees. No such rejection is claimed. Plaintiff asserts that the definition of Pension Agreement in Art. 1, Sec. 10 of the Agreement and Declaration of Trust, Pltf's Ex. 16, requires that casuals be read to include part-time employees. There is no such language. The Pension Agreement is defined as a written agreement requiring payments to the Trust Fund on behalf of union employees which excludes from the agreement employees not so represented.

There is an ambiguity as to whether part-time workers are included as casual employees. Once it has been determined that a contract is ambiguous and that its construction depends on extrinsic facts and circumstances, then the terms of the contract become questions of fact and are for the trier of fact, in this case the jury. See Jaeco Pump Co. v. Inject-O-Meter Mfg. Co. (10 Cir., 1972), 467 F.2d 317, 320 and Metropolitan Paving Company v. City of Aurora (10 Cir., 1971), 449 F.2d 177, 181. The court properly submitted the question to the jury.

Plaintiff sued to recover unpaid contributions to the Trust Fund in the amount of $15,156.26. In his closing argument the attorney for the employer admitted that $3,028.05 was due. Tr.Vol. II, p. 35. The jury returned a verdict of $5,389.27 for the plaintiff. In his motion for a new trial the plaintiff contends (1) that the court erred in refusing to submit a key instruction to the jury, (2) the court's refusal to grant plaintiff's motion in limine allowed highly prejudicial and irrelevant evidence to be submitted to the jury, and (3) the verdict was either a compromise or based on speculation.

Plaintiff argues that the court erred in rejecting his tendered instruction on contract interpretation. The instruction read:

"Whose Meaning Prevails

Where the parties have attached different meanings to a promise or agreement or a term thereof, it is interpreted in accordance with the meaning attached by one of them if at the time the agreement was made (a) that party did not know of any different meaning attached by the other and the other knew the meaning attached by the first party; or (b) that party had no reason to know of any different meaning attached by the...