Fischl v. Aust

566 P.2d 518, 279 Or. 181, 1977 Ore. LEXIS 809
CourtOregon Supreme Court
DecidedJuly 12, 1977
DocketTC 73-1975, SC 24694
StatusPublished
Cited by9 cases

This text of 566 P.2d 518 (Fischl v. Aust) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fischl v. Aust, 566 P.2d 518, 279 Or. 181, 1977 Ore. LEXIS 809 (Or. 1977).

Opinions

[183]*183LENT, J.

This is a suit in equity for an accounting. We review de novo. ORS 19.125(3). The issues before us are whether defendant entered into a binding agreement to contribute to various union trust funds and, if so, whether plaintiffs, who are the trustees of those funds, are barred by laches from enforcing the agreement. The trial court determined both issues in plaintiffs’ favor. We affirm.

The dispute had its origins in September of 1970, when defendant Aust, who had been conducting a small sign-painting business in Springfield, was considering working as a painting contractor. To determine what was involved in becoming a union contractor, he met with Robert Davis, the business representative for the Painters Local Union #1277 in Eugene. After talking with Davis, defendant signed two documents, one of which is the agreement at issue in this case. It is a printed form entitled "Subscription Agreement.” By its terms defendant agreed to be bound, as an employer, by an existing collective bargaining agreement,1 and by the provisions of various trust fund agreements.2 In effect, defendant purported to bind himself, as of September 28, 1970, to make contributions to each of the trust funds at specified rates which depended on the number of hours worked by his employees and their rates of pay. Davis signed the agreement as a representative of the union’s District Council.

[184]*184The second document is also a printed form which is on the same page as, and directly below, the Subscription Agreement. The two forms are separated by a row of perforations. This second document is entitled "Application for Shop Card.” It is directed ¡to the Oregon State and Southwest Trade Board.3 It consists of a request for the issuance of a union shop card and of an agreement to be bound by the terms of the collective bargaining agreement and the trust agreements.

At the time he signed these documents defendant had no employees. He testified that it was his understanding, based upon his discussion with Davis, that the application would not be complete, and there would be no binding agreement, until lie had furnished the union or the Trade Board with his various state and federal employer’s account numbers. The spaces provided for those numbers were left blank in both forms. Davis denied telling defendant that the subscription agreement would not become operative until the account numbers were supplied.

Shortly after signing the agreement and the shop card application, defendant became ill and, because of his illness, had to give up his immediate plans for operating as a painting contractor. While he was ill, the Trade Board notified him by letter that hisi shop card application had been approved, subject to the receipt of his account numbers and to his appearance at a Trade Board committee meeting to "discuss the terms of the agreement.”

Defendant never appeared at a Trade Board meeting and did not submit any account numbers. He testified that he notified Davis by telephone that he was withdrawing his application, but Davis denied that this conversation took place. Defendant also [185]*185testified that, after receiving a second notice to appear at a Trade Board committee meeting, he called the union office in Portland to say that he liad withdrawn his application. He was not sure to whom he had spoken, but testified it might have been Mr. Fischl, who was at that time a union business representative. Fischl denied that he had such a conversation with defendant.

The Trade Board committee thereafter sent defendant the following letter, over the signature of Davis as chairman:

"This letter is your notification that Trade Board South Committee has taken the necessary action to suspend your shop card privileges as of December 10, 1970 for failure to appear as requested and to submit account numbers.
'To be reinstated you will be required to appear in person before the Trade Board South Committee, pay all fringes due, pay a $50.00 reinstatement fee and you may be required to post a bond.
"Also, we wish to advise you that as long as you are in the painting business you are subject to the terms of the agreement until its expiration date. If you quit the business you must notify the committee of your decision 60 days prior to quiting [sic] the trade.”

The matter rested there for the time being. However, in the summer of 1971 defendant began hiring employees and acting as a contractor on non-union jobs. He did not make any contributions to the trust funds as required by the terms of the collective bargaining agreement.

Early in 1973, in order to be able to work on larger jobs, defendant applied again for a shop card. Shortly thereafter, he was notified that he was delinquent in his trust fund contributions and that shop card privileges were, therefore, unavailable. Defendant denied that he had been obligated to make those contributions. This suit followed.

At trial and on appeal, defendant has contended [186]*186that the Subscription Agreement never became effective because he and Davis, representing the union, agreed that it would not be binding until defendant’s account numbers had been furnished and a shop card issued. By its terms, the Subscription Agreement was to become effective immediately and was not conditioned upon issuance of a shop card to defendant. The Application for Shop Card, which was signed at the same time, was not to become effective until it was approved. The language of the Application, however, would not lead an applicant to believe that the effectiveness of the Subscription Agreement was similarly postponed. The Application provided:

"The undersigned employer understands that this application is subject to approval and the issuance of a shop card as outlined in said agreement, and payment of all fringe benefits shall be due from the date of this application.”

Whether the parties agreed orally to such a condition was an issue that had to be resolved on the bjasis of the credibility of the witnesses. Defendant testified that his conversation with Davis was to that effect, while Davis denied that such an understanding was discussed. Although we review de novo, where the credibility of witnesses is central to an issue of fact, we give substantial weight to the trial court’s findings. Lichty v. Merzenich, 278 Or 209, 213, 563 P2d 690 (1977); Ollman v. Active Homes, 278 Or 113, 562 P2d 1217 (1977). We accept the finding on this issue of credibility which is implicit in the trial court’s general finding of the disputed facts in plaintiffs’ favor, and hold that defendant was bound by the Subscription Agreement, which by its terms became effective on September 28, 1970, and was therefore obliged to make the required contributions to the trust funds.

Defendant also contends that plaintiffs were guilty of laches and that enforcement of the agreement should be barred as a consequence. He points out that Davis testified that at some time prior to the middle of 1972 he learned, informally, that defendant had bid on [187]*187or was performing some contract jobs.

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Fischl v. Aust
566 P.2d 518 (Oregon Supreme Court, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
566 P.2d 518, 279 Or. 181, 1977 Ore. LEXIS 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischl-v-aust-or-1977.