Operating Engineers Pension Trust v. Giorgi

788 F.2d 620, 122 L.R.R.M. (BNA) 2404
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 28, 1986
DocketNo. 85-5823
StatusPublished
Cited by13 cases

This text of 788 F.2d 620 (Operating Engineers Pension Trust v. Giorgi) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Operating Engineers Pension Trust v. Giorgi, 788 F.2d 620, 122 L.R.R.M. (BNA) 2404 (9th Cir. 1986).

Opinions

SOLOMON, District Judge:

Appellants, Operating Engineers Pension Trust and other Operating Engineers benefit trusts (the Trusts), appeal the district court’s decision which found that appellee, Luigi Giorgi, a small subcontractor, is not bound by a collective bargaining agreement between the general contractor and the Operating Engineers Union. As a condition to remaining on the job, Giorgi signed a “short-form” agreement which incorporated the provisions of the collective bargaining agreement and which required Giorgi to make double contributions for the hours worked by one of Giorgi’s employees even when he was not performing work within the jurisdiction of the union. We commend the district court’s effort to reach a fair result, but the case law of this circuit requires us to reverse.

Facts

On April 12, 1979, Giorgi, a subcontractor, was working at a building site. The general contractor had signed a collective bargaining agreement with Local 12, Operating Engineers Union. One of Giorgi’s employees, Flores, was a member of the Laborers Union. On April 12, 1979, while Flores was operating a skiploader, a task within the jurisdiction of the Operating Engineers, the general contractor was notified that Giorgi could not stay on the job site unless he signed a collective bargaining agreement with the Operating Engineers.

After a brief conversation with the business agent for the Operating Engineers, Giorgi signed a short form agreement which incorporated the Master Labor Agreement between the Operating Engineers and the Southern California General Contractors. The Master Agreement authorizes the Labor Management Adjustment Board to interpret and enforce the Master Agreement.

In 1972, seven years before Giorgi signed the agreement, the Adjustment Board adopted a resolution which provides:

[W]hen an employee has been dispatched by the Union to a Contractor and the employee performs any work whatsoever covered by the Agreement, the Contractor shall be obligated to pay fringe benefit contributions to the Trusts at the required rate for each and every hour worked by the employee or paid for by the Contractor.

(Emphasis added).

The Adjustment Board noted that an employee sometimes is a member of more than one union and may be dispatched by more than one union to the same job. The Adjustment Board stated that this practice conflicts with the intent of the collective bargaining agreement and that therefore “any employee dispatched by the Union under this Agreement shall perform only work covered by this Agreement, and fringe benefit contributions shall be payable on all hours worked by such employee or paid for by the Contractor.”

From April 12, 1979 through March 31, 1981, Flores worked both as a laborer and as a skiploader operator. Giorgi reported [622]*622the hours Flores worked as a laborer to the Laborers Union and reported the hours Flores worked as a skiploader to the Operating Engineers. Giorgi contributed to each union’s pension benefit trusts according to the hours he reported to each union.

On May 6,1983, the Operating Engineers Trusts filed an action to require Giorgi to contribute to the Trusts for all the hours Flores worked, not just as a skiploader but also as a laborer.

District Court Proceedings

Giorgi testified that on April 12, 1979, when he signed the short form agreement, the business agent for the Operating Engineers assured him that he would be called upon to contribute to the Trusts only for the hours Flores worked as a skiploader. The business agent denied that he had such a conversation.

The district court found Giorgi’s testimony to be credible and the business agent’s testimony incredible. The court also found that the only hours Flores worked which Giorgi did not report to the Trusts were reported and paid to the Laborers Union trust.

The district court held that the oral agreement between Giorgi and the business agent is not enforceable. Nevertheless, the court held in favor of Giorgi on the ground that Giorgi is not bound by the Adjustment Board’s 1972 resolutions because he did not receive notice of the resolutions. The court also found that even if Giorgi is bound by the resolutions, they do not apply because Flores was not “dispatched” by the union as required by the resolutions.

The district court dismissed the Trusts' action. The Trusts appeal.

Standard of Review

We review de novo the district court’s interpretation of the collective bargaining agreement. Operating Engineers Pension Trust v. Charles Minor Equipment Rental, Inc., 766 F.2d 1301, 1303 (9th Cir.1985).

Discussion

Giorgi operates a small family-owned cement business. He was not a party to the collective bargaining sessions when the Master Labor Agreement was drafted, and he was not aware of the Adjustment Board's 1972 resolutions which require him to make double contributions for the hours Flores worked. Giorgi testified, and the district court found, that he relied on the statements of the business agent that Gior-gi would not have to make contributions to both the Laborers Union and the Operating Engineers for the same hours.

The Trusts claim more than thirteen thousand dollars in unpaid fringe benefit contributions for Flores even though Giorgi already paid contributions on every hour Flores worked. The Trusts contend that the double contribution requirement applies even if the employee’s benefits never vest.

Under the case law of this circuit, we must hold in favor of the Trusts.

This court in Waggoner v. Dallaire, 649 F.2d 1362 (9th Cir.1981), rejected attacks against the same Master Labor Agreement, and the same “short form” collective bargaining agreement, which the same international union had entered into with an individual contractor. The trial court found that the Local 12 business agent had represented that if the short form agreement was entered into, the trust benefit terms would not be enforced.

In that case, this court held that oral agreements between an employer and a union representative may not be considered when the court interprets a collective bargaining agreement. Id. at 1366.

The district court correctly concluded that any oral agreement between Giorgi and the business agent that contributions would be limited to covered employment is unenforceable.

Under Dallaire, we are precluded from finding that the short form agreement that Giorgi signed in order to stay on the job is an unenforceable contract of adhesion. In Dallaire, we stated that “parties to a col[623]*623lective bargaining agreement are conclusively presumed to have equal bargaining strength.” Id. at 1367.

Giorgi is bound by the 1972 resolutions even though he did not receive notice of them. The Adjustment Board’s resolutions are enforceable even though they are not written into the Master Labor Agreement. Waggoner v. C & D Pipeline Company, 601 F.2d 456, 459 (9th Cir.1979).

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788 F.2d 620, 122 L.R.R.M. (BNA) 2404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/operating-engineers-pension-trust-v-giorgi-ca9-1986.