Trustees of Southern California International Brotherhood of Electrical Workers-National Electrical Contractors Ass'n Pension Plan v. DC Associates, Inc. , 381 F. App'x 650 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUSTEES OF THE SOUTHERN No. 09-55766
CALIFORNIA INTERNATIONAL
BROTHERHOOD OF ELECTRICAL D.C. No. 08-CV-4211 (R) (JTL)
WORKERS-NATIONAL ELECTRICAL
CONTRACTORS ASSOCIATION
PENSION PLAN, TRUSTEES OF THE MEMORANDUM *
SOUTHERN CALIFORNIA IBEW-
NECA HEALTH TRUST FUND,
TRUSTEES OF THE LOS ANGELES
COUNTY ELECTRICAL
EDUCATIONAL AND TRAINING
TRUST FUND, TRUSTEES OF THE
NATIONAL ELECTRICAL BENEFIT
FUND, TRUSTEES OF THE INLAND
EMPIRE LABOR MANAGEMENT
COOPERATION COMMITTEE,
TRUSTEES OF THE SOUTHERN
CALIFORNIA IBEW-NECA LABOR-
MANAGEMENT COOPERATION
COMMITTEE, TRUSTEES OF THE
NATIONAL IBEW-NECA LABOR
MANAGEMENT COMMITTEE,
TRUSTEES OF THE RIVERSIDE
COUNTY ELECTRICAL HEALTH &
WELFARE FUND, LOS ANGELES
ELECTRICAL WORKERS CREDIT
UNION, CONTRACT COMPLIANCE
FUND, NATIONAL ELECTRICAL
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
INDUSTRY FUND, and
ADMINISTRATIVE MAINTENANCE
FUND,
Plaintiffs-Appellees,
v.
DC ASSOCIATES, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted May 6, 2010
Pasadena, California
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and BLOCK,
District Judge.**
DC Associates, Inc. (“DC”) appeals a summary judgment in favor of the
trustees of various employee-benefit plans (collectively, “the Trustees”). We
assume familiarity with the facts and prior proceedings. Reviewing de novo and
taking the evidence in the light most favorable to DC, see PhotoMedex, Inc. v.
Irwin, 601 F.3d 919, 923 (9th Cir. 2010), we conclude that there is a genuine issue
**
The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
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of material fact as to whether DC was bound to the terms of the Sound Agreement
with respect to work performed by members of IBEW Local 11 in Los Angeles
County. We therefore reverse the summary judgment and remand for trial.
I
It is undisputed that DC signed a letter of assent binding it to the Sound
Agreement with respect to work performed by members of the IBEW locals for
Riverside and San Bernardino Counties. The agreement, however, is subject to
two plausible interpretations as to the effect of that assent. The Trustees’ position
that an employer who agrees to be bound with respect to work performed in any
covered jurisdiction is bound with respect to work performed in all covered
jurisdictions is supported by declarations from the parties who negotiated the
agreement. DC’s position that it is bound only with respect to work performed in
those jurisdictions where it has explicit agreements with the corresponding locals is
supported by (1) the existence of the Alarm Agreement, (2) declarations by the
negotiating parties that the Alarm Agreement was specifically created to supersede
the Sound Agreement with respect to alarm work performed in Los Angeles
County (Local 11’s jurisdiction), and (3) evidence that those parties continued to
negotiate extensions of the Alarm Agreement long after DC signed the letter of
assent to the Sound Agreement. “[W]hen an agreement’s meaning is not clear on
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its face and contrary inferences as to intent are possible, there exists an issue of
material fact for which summary judgment is ordinarily inappropriate.” Ariz.
Laborers, Teamsters & Cement Masons Local 395 Health & Welfare Trust Fund v.
Conquer Cartage Co., 753 F.2d 1512, 1518 (9th Cir. 1985).
II
Although an employer may “embark[] on a course of conduct evincing an
intention to be bound” to a collective bargaining agreement, Haw. Carpenters
Trust Funds v. Waiola Carpenter Shop, Inc., 823 F.2d 289, 295 n.8 (9th Cir. 1987),
we are not persuaded that DC’s conduct conclusively establishes its acquiescence
in the Trustees’ interpretation. It is true that DC’s certified payroll reports
(“CPRs”) for public works projects listed base wage rates and job classifications
that were consistent with the Sound Agreement. However, Douglas Latham, DC’s
principal, attested that the CPRs were submitted only to demonstrate compliance
with California’s prevailing wage requirements, and that DC classified its workers
as “fire alarm technicians” until the state eliminated that category from its list of
available classifications in 2002 or 2003. Latham’s declaration was supported by a
letter from California’s prevailing wage authority to the effect that the state’s
reliance on the Sound Agreement for the prevailing wage for a particular job
classification did not bind DC to that agreement.
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It is also undisputed that DC made some benefit contributions for work
performed in Los Angeles County in accordance with the Sound Agreement.
Latham attested, however, that those contributions were made only for work
performed by members of IBEW Local 441. DC never made contributions under
the Sound Agreement for work performed by members of Local 11.
III
Finally, the Trustees argue that the Project Stabilization Agreement (“PSA”)
between the Los Angeles Unified School District and the Los Angeles/Orange
Counties Building and Construction Trades Council required DC to make
contributions in accordance with the Sound Agreement for work on district
projects. Latham attested, however, that DC had no notice of the PSA or its terms
at the time the work was performed.
IV
We express no opinion as to which of the parties’ competing interpretations
of the Sound Agreement is correct. We hold only that the issue cannot be decided
as a matter of law and, therefore, must await resolution by a trier of fact.
REVERSED and REMANDED.
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