Rebeiro v. Nor-Cal Integrated Ceilings, R-CAL

• Decision Date: 10 June 1982
• Docket Number: NOR-CAL,R-CAL
• Citation: 135 Cal.App.3d 522,187 Cal.Rptr. 256
• Court: California Court of Appeals Court of Appeals
• Parties: John A. REBEIRO, et al., Plaintiffs and Appellants, v.INTEGRATED CEILINGS, Etc., et al., Defendants and Respondents.INTEGRATED CEILINGS, Plaintiff and Respondent, v. CARPENTERS LOCAL 1570, et al., Defendants and Appellants. Civ. 49339.

Page 256

187 Cal.Rptr. 256

135 Cal.App.3d 522

John A. REBEIRO, et al., Plaintiffs and Appellants, v. NOR-CAL INTEGRATED CEILINGS, Etc., et al., Defendants and Respondents.

NOR-CAL INTEGRATED CEILINGS, Plaintiff and Respondent, v. CARPENTERS LOCAL 1570, et al., Defendants and Appellants.

Civ. 49339.

Court of Appeal, First District, Division 3, California.

June 10, 1982.

Van Bourg, Allen, Weinberg & Roger, David A. Rosenfeld, San Francisco, for plaintiffs and appellants.

Voltz, Cook & Orenstein, Morton H. Orenstein, Steven R. Feldstein, San Francisco, for defendants and respondents.

FEINBERG, Acting Presiding Judge.

This appeal is from a summary judgment in favor of the employer, Nor-Cal Integrated Ceilings, in two proceedings coordinated pursuant to Code of Civil Procedure section 404.3 and rule 1540, California Rules of Court. ¹

" 'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. [p] In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.' " (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852, 94 Cal.Rptr. 785, 484 P.2d 953, quoting from Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) (Code Civ.Proc., § 437c.)

" ' "The remedy is designed to terminate an action promptly where the purported cause of action or defense is sham or otherwise wholly unfounded. But it is futile to seek the order where any basis for a cause of action or defense can be shown. In other words, the moving party should not confuse an opponent's weak case with no case at all. The [appellate] court, construing the moving party's affidavits strictly ... and the counteraffidavits liberally ... , will reverse the summary judgment if any kind of case is shown," (4 Witkin, Cal.Procedure (2d ed.1971) Proceedings Without Trial, § 199, p. 2844.)' (Bowden v. Robinson (1977) 67 Cal.App.3d 705, p. 719, 136 Cal.Rptr. 871....)" (Fosgate v. Gonzales (1980) 107 Cal.App.3d 951, 954-955, 166 Cal.Rptr. 233.)

Viewing the record in the light of the above rules, the following pertinent facts appear:

On May 1, 1970, Nor-Cal executed a Carpenters Memorandum Agreement, which in relevant part provided: "It is hereby understood and agreed by and between the undersigned and THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, which is affiliated with the AFL-CIO, for and on behalf of its affiliated Local Unions and District Councils in the 41 Northern California Counties, that for and in consideration of services performed and to be performed by carpenters for the undersigned employer ... the undersigned agrees to comply with the wages, hours and working conditions set forth in that certain agreement referred to for convenience as the 41 Northern California Counties Carpenters Master Agreement, as renewed, supplemented, modified and changed on June 16, 1968 ... and any modifications, changes, extensions, or renewals of or to said Master Agreement made during the term of that agreement, or made in any subsequent negotiations after the expiration of the term of said agreement." (Emphasis added.)

This agreement further provided that Nor-Cal would pay to the trust funds (established for Health and Welfare, Pension Vacation and Training benefits, programs and plans) "the sum per hour for each hour paid for or worked" by carpenters which it employed, "as now specified and as may be hereafter specified by said Master Agreement ...."

By its terms the Master Agreement was effective from June 16, 1968 to June 16, 1971, and would "continue in full force and effect from year to year thereafter (unless cancelled or modified as herein provided). Either party to the Agreement may give written notice to the other of a desire to change or modify the terms hereof at least sixty (60) days prior to June 16, 1971, or June 16 of any succeeding year." (Emphasis added.)

"Successor agreements" were negotiated between certain employer groups in 46 Northern California Counties and the unions involved. These likewise were designated as Master Agreements and, respectively, covered periods from 1971-1974; 1974-1977 and 1977-1980. They were known as the Carpenters Agreement 46 Northern California Counties." ²

In its action filed against Carpenters Local 1570 and other carpenters union entities on March 28, 1977, Nor-Cal sought: (1) a determination that an executed oral contract had modified the original agreement so as to exclude from coverage all of its employees not classified as journeymen acoustical applicators; and (2) a declaratory judgment finding that the memorandum agreement and the Master Agreement and trust fund obligations had been terminated.

The motion for summary judgment was based primarily on the ground that the contractual relationship between Nor-Cal and the Carpenter parties and trust funds had expired on June 16, 1971.

The trial court found that the Memorandum Agreement in the case at bench did not incorporate the terms of the Master Agreement of the 41 Northern California Counties Carpenters, except for the "wages, hours and working conditions" provisions. The court also found that the Memorandum Agreement did not provide any termination rights for Nor-Cal, which would result in Nor-Cal being "irrevocably bound to every Master Carpenters Agreement in perpetuity without the right of termination which would be assured to any of the contracting parties to the Master Agreement."

The trial court then concluded, as a matter of law:

"(1) That the provisions of the Memorandum Agreement insofar as [they] would bind Nor-Cal to any renewal Carpenters' Agreement are invalid and void,

"(2) That the Memorandum Agreement entered into by Nor-Cal could be valid only for the period of the Master Carpenters' Agreement in effect at the time but not as to any subsequent Agreement which would be an extension, modification or renewal."

Following these conclusions, the trial court determined that there were no factual issues raised relative to the interpretation of the legal effect of the Memorandum Agreement.

The trial court also considered the issue of the claimed "renewal" of the 1968 Master Agreement by the subsequent 1971, 1974 and 1977 contracts, noting that because of the changes in the employer groups, the 1971 Agreement was not a "renewal" of the 1968 Agreement but a "new" Agreement.

On the basis of this conclusion, the trial court further concluded that the May 1, 1970 Memorandum Agreement was not intended to bind Nor-Cal to the 1971 agreement and the subsequent agreements of 1974 and 1977.

Nor-Cal contends that the trial court correctly followed applicable federal law, and cites Seymour v. Coughlin Co. (9th Cir.1979) 609 F.2d 346, (cert. den. 1980) 446 U.S. 957, 100 S.Ct. 2929, 64 L.Ed.2d 816, and also relies on Ted Hicks And Associates, Inc. v. NLRB (1978) 572 F.2d 1024.

Nor-Cal maintains that:

(a) The 1970 Memorandum Agreement did not specify any term for its duration. The 1968-1971 Master Agreement, then in effect, provided on its face that its term was from June 16, 1968 to June 16, 1971.

(b) The limited provisions of the 1970 Memorandum Agreement did not provide for Nor-Cal to become a party to the Master Agreement and thereby be entitled to its termination opportunities.

(c) Its decision to provide contributions to the trust funds did not demonstrate that it was bound by or believed that it was bound by the terms of the new Master Agreements.

We disagree and reverse as the affidavits and counter-affidavits raise a number of disputed issues of material fact.

Memorandum or short-form agreements of the type here in issue are commonly used in the construction industry, and courts have repeatedly recognized the validity of these agreements. (Const. Teamsters, Etc. v. Con Form Const. Corp. (9th Cir.1981) 657 F.2d 1101; Seymour v. Coughlin (9th Cir.1979) 609 F.2d 346; Ted Hicks And Associates, Inc. v. NLRB, supra, 572 F.2d 1024, 1025; NLRB v. R.J. Smith Const. Co., Inc. (D.C.Cir.1976) 545 F.2d 187; Bugher v. Southland Fabricators & Erectors, Inc. (W.D.La.1978) 452 F.Supp. 870; Accord, Scenic Land Properties v. Local 162, 103 LRRM 2127 (N.D.Cal.1979) affd. without opn. (9th Cir.1981) 661 F.2d 942.) The above authorities clearly indicate that a signatory to a Memorandum Agreement can agree to be bound by future modifications, extensions and renewals of the Master Agreement.

Analysis of the agreements involved provides the best evidence of the intent of the parties. (Const. Teamsters, Etc. v. Con Form Const. Corp., supra, at p. 1103.) Here, there are several contradictions as to intent that should be resolved by a trier of fact rather than by a summary judgment.

Nor-Cal's narrow and formalistic reading of the Memorandum Agreement ignores the "entire contract" and the circumstances under which it was made. It is not disputed that the "entire contract" of the parties was comprised of the Memorandum Agreement and the Master Agreement.

We note that Nor-Cal relies on a termination date of June 16, 1971, which appears only in section XVIII of the Master Agreement; accordingly, we cannot determine as a matter of law that the parties did not intend to include in the Memorandum Agreement the...