Teamsters, Chauffeurs, etc., Local U. 524 v. Billington
| Decision Date | 28 October 1968 |
| Docket Number | No. 22046.,22046. |
| Citation | 402 F.2d 510 |
| Parties | TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS LOCAL UNION 524, etc., Appellants, v. D. S. BILLINGTON, d/b/a Billington Builders Supply and Billington Builders Supply, Inc., Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George H. Davies (argued), of Vance, Davies, Roberts & Bettis, Seattle, Wash., for appellants.
Perry J. Robinson, Yakima, Wash., for appellee.
Before MERRILL and CARTER, Circuit Judges, and WHELAN,* District Judge.
This is an action for specific performance of an arbitration clause in a collective bargaining agreement. The appeal raises the following question: Whether the employer was bound by the offer of a purported agent made to the union for a collective bargaining agreement which the union claims it accepted.1
The appellant, Teamsters, Chauffeurs, Warehousemen and Helpers Local 524 (hereafter the Union), commenced the action below against D. S. Billington, an individual doing business as Billington Builders Supply (hereafter Billington) and Billington Builders Supply, Inc. (hereafter Billington Corporation), to compel specific performance of an arbitration clause in a collective bargaining agreement. The case was tried on the merits; findings of fact, and conclusions of law were made and a judgment of dismissal entered.
Although Billington and Billington Corporation were represented by counsel in the court below, neither has seen fit to file an appellee's brief supporting the judgment, nor has either of said appellees appeared at argument. Although parties may be defaulted in a trial court for failing to appear at the trial, on appeal we must consider the record made below and the brief of the appellant.
The facts before the trial court were not in dispute, and it would serve no useful purpose to enumerate them in detail.
Billington, commencing in 1954 had consecutive collective bargaining agreements with the Union. He appointed as his agent for the negotiation of the agreements, one Velikanje, an attorney who had represented a group of employers, engaged in the sale of building materials in the Yakima area, since the end of World War II, and had negotiated collective bargaining on their behalf.
The last agreement negotiated between Billington and the Union, by Velikanje, prior to the one in question, remained in force from April 1, 1961 until April 1, 1963. The agreement provided in part that, "It may be opened for negotiation of changes or termination by either party giving sixty (60) days notice prior to April 1, 1963." No notice of termination was given by either party, but the Union by letter to Billington dated January 2, 1963, gave sixty (60) days "notice of * * * desire to open the agreement for the negotiation of changes." Billington turned the letter over to attorney Velikanje and instructed him to negotiate the agreement with the Union. Velikanje began negotiations on behalf of Billington and other employers in the building materials business.
Subsequently on February 15, 1963, Billington and others formed the appellee Billington Corporation. Billington transferred the assets of the business which he had operated as a sole trader to Billington Corporation. One Ormand Fluegge became president and general manager of the corporation.
After the formation of Billington Corporation, Fluegge, its president, attended one of the meetings of the employers on May 29, 1963, and on that date informed Velikanje of the formation of Billington Corporation. Fluegge did not tell Velikanje not to represent Billington Corporation. Fluegge stated that he was not sure the corporation would sign the contract, but apparently gave no indication of any intent to change the existing delegation of bargaining authority. Thereafter, without further word from the corporation, Velikanje proceeded with negotiations and kept Billington Corporation advised as to the progress of the meetings with the Union. On September 3, 1963, Velikanje made an offer to the Union, a copy of which was sent to Billington Corporation. On September 6, 1963, the Union accepted the offer. Velikanje advised Billington Corporation of the acceptance. Thereafter, some time between September 14 and September 30, 1963, Fluegge called Velikanje stating that Billington Corporation was not interested in signing the collective bargaining agreement.
In March 1965, a question concerning vacation pay due James Smith, an employee of Billington Corporation arose, and the Union first learned that Billington Corporation had not signed the collective bargaining agreement. The Union then requested that the matter be submitted to arbitration. Defendants refused and the suit to compel arbitration was then commenced.
Other facts in the record are material to our problem. (1) From February 15, 1963, the date of the incorporation of Billington Corporation until April 1, 1963, the anniversary date of the 1961-1963 collective bargaining agreement; and from April 1, 1963 until James Smith left the employ of Billington Corporation in February 1965, Billington Corporation observed all the terms and conditions of the 1961-1963 and the 1963-1966 collective bargaining agreements.
(2) The 1963-1966 collective bargaining agreement provided for a wage increase effective September 1, 1963 and for a further ten cents an hour increase on April 1, 1964. James Smith received his retroactive pay to September 1, 1963. He received the vacation and the over time pay provided in the agreement.
(3) The 1963-1966 agreement required payment of $17.85 per month into the Washington Teamsters Welfare Trust and payment of ten cents an hour into the Western Conference of Teamsters Pension Trust Fund. Billington Corporation made both the Health and Welfare and Pension monthly premium payments for James Smith until his termination.
(4) Velikanje billed the employers in the amount of each one's proportionate share for his services in...
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King v. Laborers Internat. U. of No. America, UL No. 818
...See with regard to Rule 31, Federal Rules of Appellate Procedure, Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 524 v. Billington, 402 F.2d 510 (9th Cir. 1968); United States v. Edwards, 366 F.2d 853 (2d Cir. 1966) cert. denied 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782; Phil......
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Retail Clerks Health & Welfare Trust Funds v. Shopland Supermarket, Inc.
...normal rules of offer and acceptance are said to govern the formation of collective bargaining agreements. Teamsters Local 524 v. Billington, 402 F.2d 510, 513 n.2 (9th Cir. 1968). Extraneous evidence is generally admissible to show the mutual intention of the parties was not to enter into ......
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...Goldberg, The Labor Law Obligations of a Successor Employer, 63 Nw.U.L.Rev. 735, 775 (1969).The same is true of Teamsters Local 524 v. Billington, 402 F.2d 510 (9th Cir. 1968). Moreover, the successor corporation by its conduct had ratified the acts of the agent who negotiated and agreed to......
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...Teamsters, 424 F.2d 1001, 1004 (10th Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 257 (1970); Teamsters Local 524 v. Billington, 402 F.2d 510, 513 (9th Cir. 1968). The local union, then, would be a labor organization suing for violation of its contract with the employer. See ......