Sletten Construction Co. v. Audit Services, Inc.

619 P.2d 177, 190 Mont. 123, 1980 Mont. LEXIS 871, 110 L.R.R.M. (BNA) 2437
CourtMontana Supreme Court
DecidedOctober 27, 1980
DocketNo. 79-78
StatusPublished

This text of 619 P.2d 177 (Sletten Construction Co. v. Audit Services, Inc.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sletten Construction Co. v. Audit Services, Inc., 619 P.2d 177, 190 Mont. 123, 1980 Mont. LEXIS 871, 110 L.R.R.M. (BNA) 2437 (Mo. 1980).

Opinion

MR. JUSTICE DALY

This is an appeal from a judgment of the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade, the Honorable John M. McCarvel presiding. Audit Services, Inc. (Audit Services), the assignee of the trustees of several Laborers, Operating Engineers and Teamster trust funds, filed a complaint against Sletten Construction Co. (Sletten), attempting to recover fringe benefit contributions for hours worked by employees of Swartz Brothers Excavating Inc. (Swartz), a subcontractor of Sletten on fifteen different projects, from the period of January 1, 1977, through September 18, 1977. Audit Services is [125]*125also attempting to recover audit fees, liquidated damages, interest and attorney fees.

During the subject period of this litigation, Sletten was a party to and bound by several collective bargaining and trust agreements with numerous contractors’ associations and unions. All fifteen Sletten-Swartz projects were covered by one of the collective bargaining agreements (CBAs). By the terms of the CBAs, Sletten agreed to make fringe benefit contributions to the unions’ trust funds. Each of these agreements also contain a subcontractors’ clause. Although the wording of the clauses vary slightly, their purposes are the same. The clauses state that the employer (Sletten) agrees that the contractors to whom subcontracts are let shall be required to comply with all the requirements, conditions and intents of the CBAs and shall continue to do so throughout all parts of the subcontract work. Any violation of the agreement would constitute a breach of the agreement. One clause specifically allows that controversies over the interpretation of the agreement be subject to a grievance arbitration procedure.

The Swartz business first came into existence in the early 1970’s when Robert Swartz began operating an excavating business known as Robert Swartz Excavating, a sole proprietorship. Subsequently, Robert’s brother Clarence joined the business, and the name was changed to Swartz Brothers Excavating, which was a partnership. In 1975, the brothers incorporated their business which became known as Swartz Brothers Excavating, Inc. During these entity changes, the business carried on the same type of work. In its capacity as a sole proprietorship, partnership and corporation, the excavating business executed a series of compliance agreements with the Laborers, Operating Engineers and Teamster unions. The agreements incorporated the terms of the existing CBAs negotiated by those unions with the aforementioned contractors’ associations of which Sletten is a member. The compliance agreements also incorporated the terms of the Montana Laborers, Operating Engineers, and Teamster trust funds. A number of the compliance agreements were executed prior to the incorporation of Swartz Brothers Excavating, Inc.

[126]*126While performing work for Sletten, Swartz Brothers Excavating, Inc., observed all current CBAs by making required fringe benefit contributions on behalf of its Laborers, Operating Engineers and Teamster employees until mid-1977, the subject period of this litigation. At that time Swartz stopped making payments because it was having cash-flow problems. Eventually all operations by Swartz ceased, and a petition for bankruptcy was filed in October 1977.

Audit Services, under two theories of liability, filed suit against Sletten seeking the contributions Swartz had failed to make. Under the first theory, Audit Services alleged Sletten breached its obligation under the CBAs. Under the second theory, Audit Services alleged Sletten was obligated to pay contributions under section 39-3-706, MCA. Basing its decision on both theories, the District Court granted judgment in favor of Audit Services in the amount of $9,578.89 as fringe benefit contributions for Swartz’s employees, $426.19 as liquidated damages, interest of $27.64, audit fees of $548.71, and attorney fees of $2,925.00. Sletten appeals.

The issue presented on appeal is whether the District Court erred in finding that the subcontractors’ clauses in the collective bargaining agreements contractually obligated Sletten Construction Co. to pay fringe benefit contributions to Audit Services, Inc., for hours worked by Swartz Brothers Excavating, Inc., a subcontractor of Sletten Construction Co.

Sletten contends that there is no contractual obligation under the CBAs because the subcontractors’ clauses are unenforceable and void in accordance with Title 29 U.S.C.A. § 158(e). It argues that the clauses, in effect, provide that Sletten agrees not to subcontract any work to any contractor who is not a union contractor employing union employees and, thus, are prohibited by § 158(e).

Respondent argues that the subcontractors’ clauses merely require Sletten to apply the same terms and conditions in its own union-signatory clauses; they are all union-standards clauses and, therefore, fall outside the scope of 29 U.S.C. § 158(e).

[127]*127Federal, rather than state, law principles of contract construction apply in determining the meaning of the subcontractors’ clause since it is a provision of a collective bargaining agreement. Application of federal law is necessary to avoid the “possibility that individual contract terms might have different meanings under state and federal law.” Walsh v. Schlecht (1977), 429 U.S. 401, 97 S.Ct. 679, 50 L.Ed.2d 641.

The pivotal issue is whether the subcontractors’ clauses are union-signatory or union-standards clauses. We agree with Judge Skelly Wright who held in Truck Drivers Union Local No. 413, etc. v. NLRB (D.C. Cir. 1964), 334, F.2d 539, cert. denied, 118 U.S.App.D.C. 149, that union-signatory clauses are secondary and, therefore, within the scope of 29 U.S.C. § 158(e) of the NLRA, while union-standards clauses are primary as to the contracting employer. The subject subcontractors’ clause would be a union-signatory clause if it required subcontractors to have collective bargaining agreements with petitioner unions or their affiliates or with unions generally.

We interpret the clause, however, as merely requiring that subcontractors observe the equivalent of union wages, hours, and the like. Since we find that this clause only requires union standards, and not union recognition, we rule it primary and, thus, outside the prohibition of § 158(e). The concept of a “union-standards” subcontracting clause has repeatedly been approved in federal cases. Mine Workers v. Pennington (1965), 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626; see, e. g., NLRB v. National Maritime Union (2nd Cir. 1973), 486 F.2d 907.

Having determined that the clauses are not void, it is necessary to decide if they impose contractual liability on Sletten. There is no dispute that the clauses incorporate the fringe benefits requirements of the underlying agreement.

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619 P.2d 177, 190 Mont. 123, 1980 Mont. LEXIS 871, 110 L.R.R.M. (BNA) 2437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sletten-construction-co-v-audit-services-inc-mont-1980.