Burke v. Lenihan

TRASK, Judge. This case presents the same legal problem that was considered by a different panel of this court in the case of Waggoner v. C & D Pipeline Co., 601 F.2d 456 (9th Cir. 1979). In Waggoner the question on appeal was “whether the agreement requires contributions for all hours worked by employees who perform any covered work or only for the hours actually worked in covered employment.” Waggoner v. C & D Pipeline Co. (At 457). We held there that the collective bargaining agreement required contributions for all hours worked by or paid to employees who perform any work covered by the Master Labor Agreement. As appears in Waggoner , the ambiguity, if one indeed existed, was resolved by a reference of the problem to the Labor Management Adjustment Board, a group created expressly for the purpose of settling disputes over the interpretation of the Master Labor Agreement. It seems clear that the interpretation of the contract with which we deal here was also settled by the Labor Management Adjustment Board. In the present case, Burke v. Lenihan, the trustees of several Operating Engineers Trust Funds sued an employer for allegedly breaching a provision of the collective bargaining agreement. One of the employer’s workers served as an operating engineer part of the time, and as a laborer the rest of the time. The trustees argued that the agreement required the employer to make contributions to the trust fund based on the total number of hours the employee was paid for, regardless of the type of work he performed. The employer took the position that he was obliged to contribute only for the time the employee actually spent performing operating engineer tasks. The district judge granted summary judgment in favor of the employer. Because we find that the decision in Waggoner, supra, is controlling here, the judgment is REVERSED.