Trustees of Wyoming Laborers Health and Welfare Plan v. Morgen & Oswood Const. Co., Inc. of Wyoming, Nos. 86-1488

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before HOLLOWAY, Chief Judge, TACHA, Circuit Judge, and BRATTON; BRATTON
• Citation: 850 F.2d 613
• Parties: 109 Lab.Cas. P 10,572 The TRUSTEES OF the WYOMING LABORERS HEALTH AND WELFARE PLAN, an express trust; the Trustees of the Oregon Laborers-Employers Vacation Savings Trust Fund, an express trust; the Trustees of the Oregon Southwestern Washington Laborers Training Trust Fund, an express trust; the Laborers National Pension Fund; and Ann Sizemore, in her capacity as Administrator, Plaintiffs- Appellants Cross-Appellees v. MORGEN & OSWOOD CONSTRUCTION COMPANY, INC. OF WYOMING, a Wyoming corporation, Defendant-Appellee Cross-Appellant.
• Decision Date: 24 June 1988
• Docket Number: Nos. 86-1488,86-1489

Page 613

850 F.2d 613 109 Lab.Cas. P 10,572 The TRUSTEES OF the WYOMING LABORERS HEALTH AND WELFARE
PLAN, an express trust; the Trustees of the Oregon
Laborers-Employers Vacation Savings Trust Fund, an express
trust; the Trustees of the Oregon Southwestern Washington
Laborers Training Trust Fund, an express trust; the
Laborers National Pension Fund; and Ann Sizemore, in her
capacity as Administrator, Plaintiffs- Appellants Cross-Appellees
v.
MORGEN & OSWOOD CONSTRUCTION COMPANY, INC. OF WYOMING, a
Wyoming corporation, Defendant-Appellee Cross-Appellant. Nos. 86-1488, 86-1489. United States Court of Appeals,
Tenth Circuit. June 24, 1988.

Page 614

David Evans of Rooney, Bagley, Hickey, Evans & Statkus, Cheyenne, Wyo., for plaintiffs-appellants cross-appellees.

Leslie S. Waite, III, of Waite, Schuster & Larson, P.C., Great Falls, Mont., for defendant-appellee cross-appellant.

Before HOLLOWAY, Chief Judge, TACHA, Circuit Judge, and BRATTON, District Judge. ^*

BRATTON, District Judge.

This is an appeal and cross-appeal from a judgment entered by the district court in favor of trustees of employee benefit pension and insurance funds and assessing damages against an employer for delinquent

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contributions. The district court held that the employer owed a portion of the delinquent contributions claimed by the trustees, and awarded $11,461.27 for unpaid contributions, a double interest penalty on that amount, auditor's fees, attorney's fees and costs against the employer. The trustees and the employer appeal from that judgment.

Morgen & Oswood Construction Co., Inc. ("Morgen & Oswood") is a Wyoming corporation that was engaged as an employer in construction operations in Wyoming during all relevant periods. Morgen & Oswood employed laborers, carpenters and other construction workers; these workers were normally employed at the commencement of a project and their employment was terminated when the project concluded. Morgen & Oswood did not have a permanent, year-round construction work force.

The Trustees are various multi-employer trust funds which provide medical and hospital insurance, vocational training, vacation pay and retirement benefits for employees who are laborers in the construction industry in Wyoming and Oregon. The trust funds were established pursuant to the Labor Management Relations Act, 29 U.S.C. Sec. 186(c). The Trustees filed this action as "fiduciaries" to enforce the terms of the trust agreements under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1132(a)(3)(B)(ii) (1982), as amended by the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. Sec. 1145 (1982). ¹

From February 22, 1979 through June 30, 1979, Morgen & Oswood and the Oregon, Southern Idaho, and Wyoming District Council of Laborers and Construction and General Laborers Local 1271 ("the Union") were parties to a "pre-hire agreement" ² that pertained to a collective bargaining agreement negotiated by the Union and the Wyoming Contractors Association, Inc. The contract bound Morgen & Oswood to the provisions of the collective bargaining agreement until June 30, 1979. ³ The collective bargaining agreement, in turn, bound Morgen & Oswood to the terms of the Trustees' trust agreements, which had been incorporated by reference into the collective bargaining agreement. The trust agreements required Morgen & Oswood to make fringe benefit payments to the trust funds based on a specified sum per hour for every employee performing work covered by the Union contract.

On March 26, 1979, Morgen & Oswood notified the Union by letter of its intent to terminate the agreement pursuant to the terms of the collective bargaining agreement, which allowed an employer to opt out of any successor collective bargaining agreements if it gave the Union written notice sixty days prior to the termination date of June 30, 1979. The parties agree that this agreement was no longer in effect after June 30, 1979.

Douglas Oswood, the president of Morgen & Oswood, signed another "Laborer's Compliance Agreement" on August 8, 1979. This contract contained a notation that the pre-hire agreement was to apply

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only to the Sheridan Heritage Towers project. Two copies of the pre-hire agreement had been sent by the Union to Morgen & Oswood. One agreement was signed on behalf of the Union, and Morgen & Oswood was to sign both copies and retain the copy signed by the Union; the other copy was to be returned to the Union. On August 9, 1979, a representative of the Union visited Morgen & Oswood's construction site in Sheridan, Wyoming, to pick up the agreement. The Union representative informed Gary Harwood, Morgen & Oswood's project superintendent, that the Heritage Towers limitation would be unacceptable to the Union. Harwood apparently received telephone authorization to initial the deletion of the notation. The notation was marked out in black ink and the Union representative initialed this change. The Union representative delivered the marked copy of the agreement to the Union agent; the agreement was then forwarded to the Local in Cheyenne, Wyoming, where it was signed. Morgen & Oswood claimed that it never obtained a copy of the agreement signed by the Union until April 24, 1984.

Morgen & Oswood did not sign a new "Standard Form of Participation Agreement" with the pension fund Trustees. This agreement usually becomes part of the labor agreement and specifies the effective and termination dates, as well as the employer's pension responsibilities. It was the Union's general practice to send copies of all labor agreements to employers. ⁴

At trial, Douglas Oswood testified on behalf of Morgen & Oswood. He stated that he intended and understood that the agreement would apply only to the Sheridan Heritage Towers project and the Yellowstone Park Mammoth Hot Springs project. Morgen & Oswood made fringe benefit contributions to the trust funds for the covered employees on both of these projects. Morgen & Oswood also operated eleven other projects in Wyoming during this time period, but made no fringe benefit contributions for these projects. The Union did not represent a majority of the employees at any of the projects, but had notice that these projects were in progress.

A Union representative visited several of Morgen & Oswood's job sites in the summer of 1981 and later in the year. He was told that Morgen & Oswood was not hiring union help on these jobs because Morgen & Oswood considered the jobs to be non-union and that it was not bound by any Union agreement pertaining to these jobs. Morgen & Oswood also informed subcontractors that the jobs were non-union. As a result, the Union was of the opinion that a serious labor problem existed, because the Union took the position that Morgen & Oswood was not complying with an existing contract. On December 29, 1981, Douglas Oswood wrote to the Union and denied that Morgen & Oswood was bound by any collective bargaining agreement. On February 25, 1982, the Union responded, informing Morgen & Oswood that a labor agreement dated August 8, 1979, signed by Morgen & Oswood, was still in effect and would remain in effect until June 30, 1982. Despite two requests by Douglas Oswood, the Union failed to send copies of any agreements to Morgen & Oswood.

Although the Union's normal practice was to notify the Trustees of non-compliance by employers, the Union failed to notify the Trustees concerning Morgen & Oswood's failure to make required contributions for the eleven projects. On September 30, 1982, the Trustees wrote to Morgen & Oswood, stating that no reports or contributions had been received for April, 1982 through July, 1982. On October 13, 1982, Morgen & Oswood informed the Trustees that it was no longer responsible for any pension fund contributions. By letter dated September 2, 1983, the Trustees' accountant requested an audit for the period

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of February 1, 1979 through June 30, 1982. An audit was subsequently conducted; although Morgen & Oswood reserved its defenses, the specific computations of that audit are not in dispute.

The case was tried to the district court on August 21 and 22, 1985. The district court found that Morgen & Oswood entered into a contract with the Union on August 9, 1979. The court determined, however, that Morgen & Oswood had repudiated the agreement by July 31, 1981. The court found, therefore, that Morgen & Oswood was bound to the collective bargaining agreements in existence during the period from August 9, 1979 through July 31, 1981. The court also found that the Trustees' suit was not barred by a statute of limitations and further found that the suit should not be estopped or barred by laches. On February 19, 1986, the district court entered judgment in favor of the Trustees in the amount of $32,163.92. ⁵

Both parties have appealed from the judgment entered by the district court. The Trustees agree that there was a binding contract in effect as of August 9, 1979, but argue that Morgen & Oswood did not repudiate that contract before December 29, 1981, when it gave written notice of its intent to terminate the agreement. Morgen & Oswood argues that there was no contract between the parties in August, 1979, but that if there was a contract, the district court was correct in finding that Morgen & Oswood repudiated the contract. Morgen & Oswood also argues that the Trustees' action was barred by either of two applicable statutes of limitation. Finally, Morgen & Oswood argues that the Trustees were negligent in asserting their claims, and that their action should be barred by the doctrines of estoppel and laches.

I. Statute of Limitations

The Trustees' Complaint was filed on October 2, 1984. Morgen & Oswood raised the defense that either of two applicable statutes of limitations barred recovery on at least three occasions: in its Answer, Vol. I, R. 11, at the Pretrial Conference, Vol. I, R. 17, and at trial, Vol. II, R. 13; Vol...