United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Ass'n, Local 307 v. G & M Roofing and Sheet Metal Co., Inc.
Decision Date | 13 April 1984 |
Docket Number | 83-3086,Nos. 82-3633,s. 82-3633 |
Citation | 732 F.2d 495 |
Parties | 115 L.R.R.M. (BNA) 3700, 26 Wage & Hour Cas. (BN 1151, 101 Lab.Cas. P 11,073, 101 Lab.Cas. P 34,550 UNITED SLATE, TILE AND COMPOSITION ROOFERS, DAMP AND WATERPROOF WORKERS ASSOCIATION, LOCAL 307, et al., Plaintiffs-Appellees, v. G & M ROOFING AND SHEET METAL COMPANY, INC., Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Roger L. Sabo, argued, Columbus, Ohio, Charles A. Morgan, Amerman, Burt & Jones, Canton, Ohio, for defendant-appellant.
James DeLeone, John L. Duffey, argued, Topper, Alloway, Goodman, Deleone & Duffey, Columbus, Ohio, for plaintiffs-appellees.
Before LIVELY, Chief Circuit Judge, KRUPANSKY, Circuit Judge, and PHILLIPS, Senior Circuit Judge.
G & M Roofing and Sheet Metal Company, Inc. (G & M), appeals the decision entered below, upon a trial to the court, that G & M violated the Labor-Management Relations Act (L.M.R.A.), 29 U.S.C. Sec. 185, by breaching a contract provision concerning wages, and that G & M also violated the Fair Labor Standards Act (F.L.S.A.), 29 U.S.C. Sec. 207, by withholding overtime wages from six specific workers. Following the entry of judgment in favor of the union, the United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Local 307 (Local 307), the district court also awarded Local 307 $28,079.75 as its attorney fees.
The facts, as found by the trial judge in an exhaustive memorandum opinion, established that in May of 1975, G & M decided to open a branch facility in Cambridge, Ohio. Since the firm's inception in 1966, it had been located in the Canton-Louisville area and had maintained a contract with Local 88 of the roofers union, which was based in Cleveland, Ohio and had jurisdiction over northeastern Ohio counties. G & M was aware that Local 307 had jurisdiction over Cambridge workers.
In early July 1975, G & M's founder and board chairman, Jack George (George), met with Local 307 bargaining representative Paul Arnett (Arnett) at G & M's Cambridge office. The subject of the meeting was the company's Cambridge operation; George sought Arnett's assurances that Local 307 could provide a sufficient number of workers for G & M's Cambridge plant. Arnett wanted G & M's agreement to the collective bargaining contract then in force between the union and Cambridge contractors. Because it was being printed, Arnett could not produce a copy of the collective bargaining agreement at that meeting, but the trial court found, upon Arnett's testimony, that George had orally agreed to adhere to the bargaining contract.
Approximately one week subsequent to the meeting, Arnett returned to G & M's Cambridge office with a printed copy of the contract and with a supplemental contract which provided for automatic cost-of-living adjustments to wages. G & M vice president Bill Krejci signed the supplemental agreement and returned it by mail to Arnett. The printed copy of the contract was not executed by G and M, nor was it returned to Arnett. However, G & M appears as a signatory in the printed and bound 1976 master contract.
Upon these facts, the trial court concluded that G & M's Cambridge operations were bound during 1975 through March 1, 1976 (the date the 1976 contract was effective) by the bargaining agreement negotiated with Local 307. Based upon that conclusion, and the provisions of the contract, the court found the following breaches:
1. G & M failed to pay the correct hourly rate for journeymen, helpers, foremen and for those engaged in "hot pitch" work;
2. G & M failed to acknowledge or compensate as overtime all of the hours worked outside of the contractually specified work day of 8 a.m. to 4:30 p.m.; and,
3. G & M failed to pay forty cents per hour worked to Local 307's pension fund.
The second statutory claim, for violation of the Fair Labor Standards Act, seeks to recover overtime compensation not paid to individual workers, liquidated damages equal to the unpaid overtime, and attorney fees. The lower court, relying upon the previously delineated findings of fact, concluded that G & M had violated 29 U.S.C. Sec. 207. However, the court declined to duplicate the compensation to the workers already awarded by virtue of the decision in favor of the union and further declined to award liquidated damages. This conclusion was based upon the court's findings that G & M, albeit erroneously, believed the Cambridge workers were to be compensated pursuant to the agreement in force between the company and its Canton Union Local. That agreement permitted the company to require workers to report early to a job site without accruing overtime. Thus, G & M's withholding of overtime under similar circumstances in Cambridge was incorrect but did not give rise to liquidated damages.
In a separate proceeding conducted subsequent to entry of judgment in the amount of $37,480.00 for all the plaintiffs, the court considered the claim for attorney fees pursuant to the Fair Labor Standards Act. Inasmuch as attorney fees are mandatory under the relevant statute, 29 U.S.C. Sec. 216(b), the evidentiary hearing focused solely upon the amount to be awarded. The court awarded fees of $28,079.75.
The instant appeal is a consolidation of appeals taken from the substantive judgment and the award of attorney fees.
The company charges fifteen assignments of error on this appeal which may be fairly consolidated into four assignments of error: (1) The district court erred in concluding that no valid bargaining agreement existed between Local 307 and G & M's Cambridge plant; (2) any contract was void against G & M as a "prehire" agreement; (3) if enforced, Local 307 could not maintain this action because it failed to exhaust the contract's grievance procedures; and, (4) it was error to award fees beyond the amount of the contingent fee arrangement between the plaintiff and its counsel, and by failing to reduce the hours submitted by counsel for time expended on Local 307's Sec. 301 claim, which was not subject to a fee award.
The finding that an agreement existed between G & M and Local 307 is a factual determination and is thus subject to the "clearly erroneous" standard of review. Fed.R.Civ.P. 52(a). In Sawyer v. Arum, 690 F.2d 590 (6th Cir.1982), which was also a case involving a determination of the existence of a contract, made by a trial judge sitting without a jury, this court defined the applicable scope of review:
[T]he factual conclusions rendered by a district court sitting without a jury are binding on appeal unless this court is left with a definite and firm conviction that a mistake has been made. It is the appellant who must shoulder the burden of proving such a mistake, and this burden is not met merely by demonstrating a conflict in the testimony, nor by seeking to redetermine the credibility of witnesses. Moreover, the appellate court must review the facts in the light most favorable to the present appellee.
690 F.2d at 591-92 [citations omitted].
Viewed in the light most favorable to Local 307, there is ample evidence in the record, particularly Arnett's credited testimony, to support the finding of fact that G & M agreed to be bound by Local 307's master agreement, as of July 1975, when conducting business in the Cambridge area. See Arnold Palmer Golf Co. v. Fuqua Industries, Inc., 541 F.2d 584, 588 (6th Cir.1976) (). Accordingly, the finding that G & M was contractually obliged to observe the master agreement is affirmed.
G & M next asserts that even if a contract existed, the contract is not enforceable because it was a "prehire" agreement; that is, a labor contract entered into prior to the hiring of any employees and thus, necessarily, prior to any proof that the union represented a majority of the company's employees. Relying upon the Supreme Court decision in N.L.R.B. v. Local 103, International Assoc. of Bridge, Structural and Ornamental Ironworkers (Higdon Construction), 434 U.S. 335, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978), appellant here maintains that while the company may have contracted with a union prior to proof of majority status, such a contract was not enforceable until the majority was ascertained by election.
Two points of analysis are relevant prior to considering G & M's construction of Higdon. First, even if prehire contracts cannot be enforced under the Labor Managements Relations Act, the lack of a valid union contract is never a defense to violations of the Fair Labor Standards Act. Simply put, the Labor Management Relations Act, 29 U.S.C. Sec. 185, regulates conduct between an employer and a labor organization, while the Fair Labor Standards Act, 29 U.S.C. Sec. 201, et seq., is designed to give individual workers, regardless of whether they have a valid union contract, certain minimum wage and hour standards. See Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). Second, whatever merit might have been previously ascribed to G & M's construction of Higdon, has been authoritatively refuted by the Supreme Court in Jim McNeff, Inc. v. Todd, --- U.S. ----, 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983).
In Higdon, the Court had ruled that a minority union had no right, based solely on a prehire agreement, to picket an employer to force the employer to bargain with the union. 434 U.S. at 346, 98 S.Ct. at 658. The Court concluded that a prehire contract addressing wage rates was not equivalent to a representation election in conferring all the legal rights that flow to a certified union, including the right to picket. The Court rested this conclusion on two points: (1) a desire to protect the right of employees to freely select their own bargaining representatives, and (2) Congress'...
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