Mo-Kan Teamsters Pension Fund v. Creason

• Decision Date: 06 September 1983
• Docket Number: No. 81-1671,MO-KAN,81-1671
• Citation: 716 F.2d 772
• Parties: 115 L.R.R.M. (BNA) 2130, 98 Lab.Cas. P 10,434 TEAMSTERS PENSION FUND, a trust fund, and Mo-Kan Teamsters Health & Welfare Fund, a trust fund, Plaintiffs-Appellees, v. Robert J. CREASON, d/b/a Kansas Cartage Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 772

716 F.2d 772

115 L.R.R.M. (BNA) 2130, 98 Lab.Cas. P 10,434

MO-KAN TEAMSTERS PENSION FUND, a trust fund, and Mo-Kan Teamsters Health & Welfare Fund, a trust fund Plaintiffs-Appellees, v. Robert J. CREASON, d/b/a Kansas Cartage Company, Defendant-Appellant.

No. 81-1671.

United States Court of Appeals Tenth Circuit.

Sept. 6, 1983.

Susan Ellmaker of Gates & Clyde, Overland Park, Kan., for defendant-appellant.

Michael C. Arnold of Yonke, Shackelford & Arnold, P.C., Kansas City, Mo. (Albert J. Yonke, Kansas City, Mo., with him on brief; George A. Groneman, Kansas City, Kan., also on brief), for plaintiffs-appellees.

Before BARRETT, McKAY and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

This is an action brought under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 (1976), and section 502 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. Sec. 1132 (1976 & Supp. V 1981). Defendant Robert J. Creason appeals from the district court's order awarding plaintiffs Mo-Kan Teamsters Pension Fund and Mo-Kan Teamsters Health and Welfare Fund (the Funds) delinquent fringe benefit contributions, with interest, audit costs, and attorney's fees. He alleges that the trial court erred in (1) finding that he executed a contract stipulation; (2) failing to find the stipulation unenforceable as a prehire agreement; (3) finding that his obligation did not terminate; (4) rejecting certain parol evidence; and (5) basing the measure of damages on the results of an audit submitted by plaintiffs. We affirm.

I. EXECUTION OF CONTRACT STIPULATION

A. Factual Background

Creason owns and operates Kansas Cartage Company, a trucking firm. The plaintiff trust funds were established in 1969 pursuant to a collective bargaining agreement between the Builders' Association of Kansas City, Missouri (Builders' Association) and Local Union No. 541 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers (Union). Although Creason has never been a member of the Builders' Association, the Union placed a picket on Creason's business on March 14, 1971, to protest his refusal to make payments into the Funds. The next day Creason met with Karl Rogers, who is the president and a business representative of the Union and a trustee of both Funds.

From this point the facts are hotly disputed. Plaintiffs' witnesses testified that Creason executed the following contract stipulation:

"TEAMSTERS LOCAL UNION 541 CONTRACT STIPULATION

"The undersigned employer acknowledging receipt of a copy of the Collective Bargaining Agreement presently in effect between the Builders' Association of Kansas City and Local Union 541, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, and after negotiation and a complete discussion of the facts and circumstances involved and desiring and intending to be bound by the prevailing wages and conditions in the area, hereby agrees with the Union to be bound by the terms of such collective bargaining agreement, subsequent collective bargaining agreements, all fringe benefit agreements, welfare and pension plan trusts, all rules and regulations adopted by the Trustees of the aforementioned Trusts, and all other legal agreements between the aforementioned parties and any renewals, modifications, or extensions thereof for the duration of all said agreements. This stipulation which expressly applies to each and every term of the above agreements, shall be valid and effective when approved by the union and the proper undersigned Board of Trustees and shall remain in effect until five years from this date and thereafter shall automatically renew itself for a three-year period and at regular three-year intervals thereafter, unless either the employer or the union gives written notice of desire to terminate to the other party and to the association, no more than 90 days and no less than 60 days prior to any such three-year anniversary date. Dated at 3-15-71, this ____ day of ______ 19____."

Rec., vol. III, at 413. The stipulation was signed and dated by Karl Rogers. Creason allegedly also signed the document. He disputed this at trial, however, testifying, "[i]t appears to be my signature but I did not sign this document." Rec., vol. XI, at 322. He said that he did sign two copies of the Builders' Association collective bargaining agreement with the words "under protest," and took an unsigned copy back to his office. However, he failed to produce either of the allegedly signed copies of this agreement.

The Funds introduced considerable evidence controverting Creason's position. Rogers testified that there would have been no reason for Creason to sign the Builders' Association contract. Additionally, the Funds produced several other documents purportedly signed by Creason. Creason conceded that all but one of the signatures appeared to be his, but he would neither deny nor affirm them as his. He did, however, acknowledge one signature as his own, a notarized signature on a document from other litigation. He conceded that this authenticated signature "appear[ed] to be the same" as the others, including the disputed one on the stipulation. Rec., vol. XI, at 343.

The parties agree that Creason submitted monthly remittance reports and made payments to the Funds from March 1971 to December 1976. Their explanations differ, however. Creason's position is that the payments were only for work done on the Crown Center project, in accordance with a purported oral agreement with Rogers. The Funds insist that he was bound by the contract stipulation to make payments for all covered workers, and they seek the delinquent amount.

B. Discussion

Creason contends the district court erred in finding that he executed the stipulation. Initially, we note that a district court's findings of fact may be overturned on appeal only if they are clearly erroneous. Fed.R.Civ.P. 52(a). " 'When a case is tried to the district court, the resolution of conflicting evidence and the determination of credibility are matters particularly within the province of the trial judge who heard and observed the demeanor of the witnesses.' " Equal Employment Opportunity Commission v. Central Kansas Medical Center, 705 F.2d 1270, 1274 (10th Cir.1983) (quoting Dowell v. United States, 553 F.2d 1233, 1235 (10th Cir.1977)).

On appeal, Creason suggests that the trial court should not have considered

                the other signatures offered.  He relies on a line of early Iowa cases discussed in Cousin v. Cousin, 192 F.2d 377 (8th Cir.1951).    Cousin, however, is limited to Iowa law, and is neither controlling nor persuasive.  Rule 901(b)(3) of the Federal Rules of Evidence allows triers of fact to authenticate writings by comparing them with authenticated specimens.  The trial court's use of plaintiffs' exhibits was entirely proper.  See generally 5 J. Weinstein & M. Berger, Weinstein's Evidence paragraphs 901(b)(3)- (1982).  Despite Creason's testimony to the contrary, there was sufficient evidence to conclude that he did in fact sign the stipulation.  The court's finding is not clearly erroneous
                

II.

PREHIRE AGREEMENT

Creason argues that the contract stipulation is unenforceable as a prehire agreement entered into without majority support for the Union. Such prehire agreements have been authorized only in the building and construction industry. National Labor Relations Act Sec. 8(f), 29 U.S.C. Sec. 158(f) (1976).

"By authorizing so-called 'prehire' agreements ..., Sec. 8(f) ... exempts construction industry employers and unions from the general rule precluding a union and an employer from signing 'a collective-bargaining agreement recognizing the union as the exclusive bargaining representative when in fact only a minority of the employees have authorized the union to represent their interests.' "

Jim McNeff, Inc. v. Todd, --- U.S. ----, 103 S.Ct. 1753, 1756, 75 L.Ed.2d 830 (1983) (quoting NLRB v. Local Union No. 103, International Association of Bridge, Structural & Ornamental Iron Workers (Higdon), 434 U.S. 335, 344, 98 S.Ct. 651, 657, 54 L.Ed.2d 586 (1978)).

The district court found that Creason was not an employer in the building and construction industry, but it also found that the stipulation was not a prehire agreement. Rather, it held the stipulation to be "a contract in which defendant voluntarily recognized the desire of a majority of his current employees to be represented by Teamsters Local No. 541." Rec., vol. II, at 227. The district court's finding that Creason voluntarily recognized the Union is not clearly erroneous. Consequently, "a presumption was created that a majority of the employees desired Union representation." Arco Electric Co. v. NLRB, 618 F.2d 698, 700 (10th Cir.1980).

If Creason believed that the Union did not represent a majority of his employees, his proper recourse was before the NLRB. Lack of majority status can only be challenged in an unfair labor practice proceeding, over which the NLRB has exclusive jurisdiction. New Mexico District Council of Carpenters v. Mayhew Co., 664 F.2d 215, 217 (10th Cir.1981). It is not a valid defense to a section 301 action for enforcement of accrued contractual obligations. Jim McNeff, 103 S.Ct. at 1758-59; Mayhew, 664 F.2d at 219-20.

Creason argues that under certain circumstances an employer can assert the illegality of a promise as a defense to a section 301 action. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982). However, Kaiser Steel is not controlling in this case. Unlike the asserted lack of majority status raised here, the hot cargo clause involved in that case was clearly an illegal promise as well as an unfair labor practice. See National Labor Relations Act Sec. 8(e), 29 U.S.C. Sec. 158(e) (1976). The Court did not disturb "the general rule [that] federal courts do not have jurisdiction over activity which 'is arguably subject to Sec. 7 or Sec. 8 of the [NL...