907 F2d 154 Laborers' Health and Welfare Fund for Southern California v. Guardian Fence Co

907 F.2d 154

Unpublished Disposition

LABORERS' HEALTH AND WELFARE FUND FOR SOUTHERN CALIFORNIA;
Construction Laborers' Pension Trust for Southern
California; Construction Laborers' Vacation Trust for
Southern California; Laborers' Training and Retraining
Trust for Southern California; Funds for Construction
Industry Advancement, Plaintiffs-Appellees,
v.
GUARDIAN FENCE CO., et al., Defendants,
and
Gelber, Inc., dba Guardian Fence Company, Defendant-Appellant.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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1

No. 88-6173.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1989.
Submission withdrawn April 13, 1989.
Resubmitted Feb. 23, 1990.
Decided July 11, 1990.

3

Before FLETCHER and KOZINSKI, Circuit Judges, and CHARLES A. LEGGE, District Judge.*

4

MEMORANDUM**

5

Plaintiffs brought this action under 29 U.S.C. Sec. 1145 (1982) to enforce the terms of collective bargaining agreements that required defendants to pay fringe benefit contributions to union trust funds. Defendants appeal the district court's summary judgment in favor of the union plaintiffs.

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1. Defendants first contend that the district court erred in refusing to admit evidence of bargaining history and other circumstances surrounding the signing of the collective bargaining agreement. Defendants wanted to introduce this evidence to show the parties did not intend to form an agreement.

7

Extrinsic evidence may not be introduced to contradict the clear terms of a collective bargaining agreement. Pierce City Hotel Employees & Restaurant Employees Health Trust v. Elks Lodge, B.P.O.E. No. 1450, 827 F.2d 1324, 1327 (9th Cir.1987). Moreover, written trust agreements supersede all prior and subsequent oral understandings. San Pedro Fishermen's Welfare Trust Fund Local 33 v. Di Bernardo, 664 F.2d 1344, 1345 (9th Cir.1982). Here, because defendants entered a written contract clearly providing for employer trust contributions, they may not deny that an agreement was formed.

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8

2. The parties also contest the district court's finding that defendants repudiated the collective bargaining agreement on June 26, 1986, the date defendant Guardian Fence Company sent a letter to the Southern California District Council of Laborers and its affiliated local unions indicating its desire to no longer be bound by the collective bargaining agreement. Defendants contend that, if there was in fact an agreement, it was repudiated at the time of execution. Plaintiffs claim, however, that the repudiation did not occur until May 6, 1987, the date on which the union lost a National Labor Relations Board certification election.

9

In Mesa Verde Constr. Co. v. Northern Calif. Dist. Council of Laborers, 861 F.2d 1124 (9th Cir.1988) (en banc), we adopted as the law of this circuit the NLRB's decision in Deklewa v. International Ass'n of Bridge, Structural & Ornamental Ironworkers, Local 3, 282 N.L.R.B. No. 184, 1986-87 NLRB Dec. (CCH) p 18,549 (Feb. 20, 1987), enforced, 843 F.2d 770 (3d Cir.), cert. denied, 109 S.Ct. 222 (1988), holding that pre-hire collective bargaining agreements may not be unilaterally repudiated prior to a NLRB certified election or termination of the contracts. The Deklewa decision, however, does not apply retroactively in this circuit. Mesa Verde Constr. Co. v. Northern Calif. Dist. Council of Laborers, Nos. 85-1665, 85-2074, slip op. at 917, 925 (9th Cir. Jan. 26, 1990) (Mesa Verde II ). Because the agreement and the event found by the district court to be an act of repudiation both pre-date Deklewa, this case is governed by prior law.1

10

Prior to Deklewa, it was well-established that "an employer [could] exercise the right of repudiation until the union achieve[d] a majority status." Mesa Verde II, slip op. at 924 (internal quotations omitted). An employer could repudiate a contract "by engaging in conduct so overtly inconsistent with contractual obligations that the union [wa]s deemed to be on notice of the employer's intent to repudiate." Trustees for Alaska Laborers-Constr. Indus. Health & Security Fund, 812 F.2d 512, 517-18 (9th Cir.1987). Mere noncompliance with contractual obligations, however, was never enough to constitute a repudiation. Id. at 518.

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Here, there is no evidence of conduct by defendants that rises above mere noncompliance with their contractual obligations. In fact, defendants admit in their opening brief that they performed some of their obligations under the agreement. Partial compliance is inconsistent with an intent to repudiate. See id. at 518. We hold, therefore, that defendants did not repudiate the agreement until Guardian notified plaintiffs in its June 26, 1986, letter.

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3. Finally, under 29 U.S.C. Sec. 1132(g)(2)(D) (Supp. V 1987), the court shall award attorneys' fees in a successful action brought on behalf of a plan to enforce section 1145. The award of such fees is mandatory, Operating Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336, 1342 (9th Cir.1988), and includes fees incurred by a prevailing plaintiff on appeal. Brick Masons Pension Trust v. Industrial Fence & Supply, Inc., 839 F.2d 1333, 1339 (9th Cir.1988). We therefore remand to the district court for the limited purpose of awarding reasonable attorneys' fees to the union plaintiffs.

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AFFIRMED AND REMANDED FOR AWARD OF ATTORNEYS' FEES.

*

The Honorable Charles A. Legge, United States District Judge for the Northern District of California, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Plaintiffs did not file a notice of appeal or cross-appeal in this action. Cases in our circuit have disagreed on whether we can consider an issue that should have been noticed in a cross-appeal but was not. Compare Bryant v. Technical Research Co., 654 F.2d 1337, 1341 (9th Cir.1981) ("a protective or cross-appeal is only the proper procedure, not a jurisdictional prerequisite once an initial appeal has been filed") (internal quotations omitted) with Hudson v. Western Airlines, Inc., 851 F.2d 261, 267 (9th Cir.1988) (appellee's failure to cross-appeal district court's denial of pre-appeal attorneys' fees precluded it from recovering the fees on appellant's appeal). Because Mesa Verde's nonretroactivity dooms plaintiffs' claim to contributions from defendants between the repudiation and the election, we need not address the cross-appeal issue