Ybanez v. Anchor Constructors, Inc.

• Decision Date: 29 December 1972
• Docket Number: No. 710,710
• Citation: 489 S.W.2d 730,70 Lab.Cas.P 32
• Parties: 20 Wage & Hour Cas. (BNA) 1082, 70 Lab.Cas. P 32,837 Roberto S. YBANEZ, Appellant, v. ANCHOR CONSTRUCTORS, INC., Appellee.
• Court: Texas Court of Appeals

Page 730

489 S.W.2d 730

20 Wage & Hour Cas. (BNA) 1082, 70 Lab.Cas. P 32,837

Roberto S. YBANEZ, Appellant, v. ANCHOR CONSTRUCTORS, INC., Appellee.

No. 710.

Court of Civil Appeals of Texas Corpus Christi.

Dec. 29, 1972.

Rehearing Denied Jan. 24, 1973.

Edwards & DeAnda, Philip Maxwell, Corpus Christi, for appellant.

Keys, Russell, Watson & Seaman, R. Kinnan Golemon, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is a suit for wages by Roberto S. Ybanez (an employee) against Anchor Constructors, Inc., his employer. Ybanez, hereafter called plaintiff, alleged that from December 14, 1967 to January 30, 1970, he worked as an 'equipment operator' yet was paid only the wage scale of a 'laborer'. Plaintiff's suit was for the difference in wages between an equipment operator and laborer for the number of hours worked during that period.

The plaintiff sought recovery from Anchor Constructors, Inc., hereafter called defendant, on two alternate theories of recovery: First, that he was entitled to recover the additional wages as a result of a labor contract which was negotiated between the Associated General Constractors of America, South Texas Chapter (a multiemployer bargaining unit), hereafter called the 'AGC', and the Hoisting and Portable Engineers, Local 450, District VI, hereafter called the 'union'; or, Second: that he was entitled to recover from the defendant additional wages pursuant to the minimum wage scale used on federal construction projects as required by the Davis-Bacon Act, 40 U.S.C.A. § 276a, et seq. The trial court refused to submit the case to the jury based on the contract (first) theory but did submit the case on the Davis-Bacon Act (second) theory and permitted recovery on the latter.

The jury found that the plaintiff had worked a certain number of hours at a higher skilled position than he had been paid. Based upon the jury findings, the trial court awarded judgment for $2451.80 'in back wages due plaintiff under the terms of the Davis-Bacon Act' plus the stipulated attorney fees. The plaintiff appeals, contending the trial court erred in failing to submit certain special issues which would entitle him to a judgment under the contract (first) theory. The defendant appeals, claiming the trial court lacked jurisdiction to render judgment for any amount if based on the Davis-Bacon Act (second) theory. We will first take up plaintiff's appeal involving the contract (first) theory of recovery.

In March of 1967 the plaintiff started to work for the defendant as a laborer. Approximately 2 or 3 months later he began working as laborer supervisor, supervising 10--20 men. On or about the 15th of December, 1967 he began working with some construction equipment owned by the defendant. The testimony showed that from December 1967 until January 30, 1970, when plaintiff terminated his employment with defendant, he worked in various capacities, at various work sites, on various jobs including 2 federal projects. Plaintiff was a non-union employee until on or about the date he quit work with the defendant at which time he joined the 'union' hereinbefore named.

In July of 1967 negotiations were commenced between the AGC and the union to set wages in Corpus Christi, Texas and the surrounding area for operating engineers. The contract was signed on October 26, 1967 for a period extending through December 30, 1970. During the time the contract was being negotiated between AGC and the union, the defendant joined the AGC.

The evidence showed that AGC is a multiemployer bargaining unit. The contract signed covered the wages and conditions of employment of operating engineers in the jurisdiction of the union for the term of the contract. The defendant did not specifically assign its bargaining rights to the AGC upon joining the organization, but subsequently did assign them in an assignment dated February 28, 1969 made expressly effective for the 'new contract' which presumably was to start at the expiration of the prior contract, that is, after September 30, 1970. Although it is undisputed that the defendant did not assign its collective bargaining rights to AGC at the time it became a member of the association or at the time the contract between AGC and the union came into effect, the plaintiff nevertheless contends he is entitled to recover the benefits of such contract between the union and AGC under the doctrine of apparent authority and estoppel.

The plaintiff contends on appeal that the trial court erred in failing to submit to the jury his special issues of 'apparent authority' and 'estoppel'. The trial court held that the plaintiff was not entitled to recover the benefits under the union contract as a matter of law and refused to submit the requested special issues covering plaintiff's theory of recovery under the contract.

Generally there are but two ways an employer (such as the defendant) can assign his rights to a multiemployer bargaining unit: (1) either by an unequivocal assignment of bargaining rights, or (2) by a history of collective bargaining on such basis. N.L.R.B. v. Johnson Sheet Metal, Inc., 442 F.2d 1056 (10th Cir. 1971). See also Komatz Construction, Inc. v. N.L.R.B., 458 F.2d 317 (8th Cir. 1972). There is no evidence of either in the instant case.

The plaintiff, however, contends that under the doctrine of 'apparent authority' the union was authorized to believe that AGC had the apparent authority to bargain on behalf of the defendant. This, plaintiff says, is based on the spoken words of the defendant which caused the union to believe that the defendant had consented to be bound by the union's contract by purporting to represent to the union that the AGC had the authority to act for the defendant. Citing Restatement of the Law 2d, sec. 8, Agencies, 1958, and illustrations (1959).

The evidence adduced at the trial concerning the apparent authority and the estoppel theories was disputed. However, for the purpose of determining the sufficiency of the evidence to warrant the submission of the special issues, we must consider only the evidence most favorable to plaintiff's theory. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.Sup.1965); Whitfill v. Hunt, 387 S.W.2d 653, 654 (Tex.Sup.1965); Lichtenstein v. Lichtenstein Bldg. Corp., 442 S.W.2d 765 (Tex.Civ.App.--Corpus Christi 1969).

The record in this regard showed that the AGC represented a number of contractors and was a multiemployer bargaining unit and as such was representing various contractor employers in bargaining with the union on certain wage contracts. Mr. H. H. 'Hamp' McCool, the business agent for the union, testified that he executed the base contract between the union and AGC under authority given him by the business manager of the union. Witness McCool testified that the union had been negotiating with AGC for 2 or 3 months when the existing contract expired without the two parties having come to an agreement. Thereafter the membership of the union voted to go out on strike and to picket AGC contractors in an attempt to bring about a new contract. From October 1 until October 23, 1967, three days before the contract in question was signed, the union members picketed all of the AGC contractors, including the defendant. During the time that the pickets were up, McCool received a telephone call from Mr. Bob Jenkins, president of the defendant corporation. Jenkins inquired of McCool as to whether or not there was a way to get the pickets removed. McCool replied that the pickets would come down if the defendant would sign a separate interim wage agreement, pending settlement of the contract negotiations between the union and AGC. To this offer Jenkins replied, 'I can't, I have become a member of AGC, and I can only do what they say.' McCool further testified that at no time during the contract negotiations between the union and AGC did anyone ever notify him or his representative that any one of the members of AGC (employing operating engineers) would not be bound by the contract. He also testified that nobody associated with AGC told him that the defendant was to be exempt from the terms of the contract. McCool testified that in his long experience in negotiating this type of contract, he had never heard of the AGC bargaining for a collective agreement with the union and then at that time or later exempting some of its members from the terms of that agreement. At or about the time the contract had been signed between AGC and the union, the pickets were removed from other AGC member contractors as well as from the defendant's job. At no time thereafter did the union attempt to negotiate a separate contract with defendant. The reasonable inference would be, that the union believed and relied upon Jenkins' statement that he was a member of the AGC and the defendant was bargaining along with the other AGC contractors.

In January of 1970 when the union discovered that the defendant was underpaying the plaintiff, McCool called Jenkins and suggested to him that he call the plaintiff in and sit down and adjust the wages because 'when the union has an agreement with a company, we give the workers (either union or non-union) the benefit.' McCool suggested that it might be only a bookkeeping error. Jenkins then called the plaintiff into his office and advised him that the defendant company could not afford the union scale and that plaintiff was free to go. Whereupon, plaintiff brought this suit. No one questions that the plaintiff would be a third party beneficiary of the contract in question and would therefore be entitled to assert its term and conditions if the contract as such is enforcible.

The law on apparent authority is aptly set out by our Supreme Court:

'The doctrine of apparent authority is based on estoppel, and one seeking to charge a principal through the apparent authority of an agent to bind the principal must prove such conduct on the part of the principal as would lead a reasonably prudent...