Wagor v. CAL KOVENS CONSTRUCTION CORPORATION

• Decision Date: 11 October 1967
• Docket Number: No. 23875.,23875.
• Citation: 382 F.2d 813
• Parties: Fritz B. WAGOR, John L. Avant et al., as Trustees of Dade County Construction Industry Advancement Fund, Appellants, v. CAL KOVENS CONSTRUCTION CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

382 F.2d 813 (1967)

Fritz B. WAGOR, John L. Avant et al., as Trustees of Dade County Construction Industry Advancement Fund, Appellants, v. CAL KOVENS CONSTRUCTION CORPORATION, Appellee.

No. 23875.

United States Court of Appeals Fifth Circuit.

July 17, 1967.

Rehearing Denied October 11, 1967.

Dan P. S. Paul, John K. Aurell, Parker D. Thomson, Miami, Fla., for appellants.

Robert C. Ward, Miami, Fla., for appellee.

Before GEWIN and AINSWORTH, Circuit Judges, and LYNNE, District Judge.

LYNNE, District Judge:

Appealing from a summary judgment entered in favor of appellee, Cal Kovens Construction Corporation (Kovens), appellants, as Trustees of the Dade County Construction Industry Advancement Fund (Trustees), are here contending that the lower court erred in disregarding settled principles both of the common law of contracts and of the emerging national labor law.

There is no genuine issue as to any material fact. On July 1, 1963, a collective bargaining agreement was entered into between the Carpenters' District Council of Miami, Florida and Vicinity (Carpenters' Union) and South Florida Chapter, The Associated General Contractors of America, Inc. and Home Builders Association of South Florida (Associations). It established working conditions, wages and fringe benefits for union carpenters employed in Dade County.

With respect to benefits, especially noteworthy are provisions of the agreement requiring the employer to pay to the Dade County Construction Employees Health and Welfare Trust Fund (Health and Welfare Fund) ten cents for each hour worked by his employees and to the Dade County Construction Industry Advancement Fund (Industry Fund) two and one-half cents (increased to five cents after July 1, 1964) for each hour worked. The Health and Welfare Fund is jointly administered by trustees separately appointed by the Carpenters' Union and the Associations and provides health and welfare benefits to employees. The Industry Fund provides funds for specified purposes to advance the construction industry and is administered by the Trustees who are appointed exclusively by the Associations. The Carpenters' Union has no participation in or control over the Industry Fund and has no voice in determining how the funds therein are to be expended.

The Trustees lean heavily upon the provisions of paragraph 2, article VIII of the agreement which read as follows:

"The parties hereby agree that the terms and conditions set forth in this Agreement shall be the same with any Employer irrespective of their membership or nonmembership in said Associations; and no more favorable terms or conditions will be given to any Employer during the term of this Agreement."

Kovens has never been a member of either Association; it has never designated either as its bargaining representative. It did not participate in the negotiation of nor did it sign such agreement. On the contrary, it elected to negotiate with the Union on its own. The resulting contract, though apparently never reduced to writing and formally executed, enabled it to employ union carpenters and required it to pay and provide identical wages and fringe benefits. It was not thereby required to make contributions to the Industry Fund.

Invoking the common law principles of ratification by acceptance and estoppel, appellants insist that appellee should be held to have adopted the contract negotiated by the Associations and to have breached its obligation to contribute to the Industry Fund. This contention will not withstand analysis. At no time did it deliberately enter into relations with the Carpenters' Union which were only consistent with the adoption of such contract. Cf. Wiggins Ferry Co. v. Ohio & M. Railway, 142 U.S. 396, 12 S.Ct. 188, 35 L.Ed. 1055 (1892). On the contrary, its separate agreement with the Union, while providing for payments into the Health and Welfare Fund, omitted any reference to contributions to the Industry Fund. Neither the Union nor its members have any interest in such fund, and appellants are not seeking to vindicate the rights of either. Moreover, inconsistent with the theory of adoption is the mute fact that it has never contributed to such fund. Thus, on its facts, this case is clearly distinguishable from William Dunbar & Co. v. Painters and Glazers District Council, 129 F.Supp. 417 (D.D.C.1955), on which appellants misplace their chief reliance.

Adverting to the duty of the lower court to fashion the substantive law of this case from the policy of our national labor laws, as taught by Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1959) and its progeny, appellants complain that its...