Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1988)

MEMORANDUM^* 

Local 322 appeals the district court's grant of summary judgment in favor of Westinghouse Electric Corporation [Westinghouse] in Local 322's suit for breach of a collective bargaining agreement [CBA]. Local 322 alleges that Westinghouse's practice of hiring "contract personnel" to perform work both on and off the premises of Westinghouse's Sunnyvale, California facility violates the CBA. We affirm.

This court reviews the grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Whether the CBA prohibits Westinghouse from hiring "contract personnel" turns upon the proper interpretation of the CBA. Int'l Bhd. of Elec. Workers, Local 387 v. NLRB, 788 F.2d 1412, 1414 (9th Cir. 1986). "Other relevant considerations include the law relating to the CBA when made, the bargaining history, the context in which the CBA was negotiated, the interpretation of the contract by the parties, and the conduct of the parties bearing upon its meaning." Id.

At the outset, we note that nothing in the CBA prohibits non-bargaining unit employees from doing bargaining unit work. The CBA contains a broadly worded Management Rights Clause, which grants Westinghouse "the freedom of action necessary to discharge its responsibility for the successful operation of the Company." The parties agreed that "no implied restrictions or obligations inhere in [the] Agreement or were assumed by the parties in entering into [the] Agreement." Although Local 322 has unsuccessfully attempted to negotiate limitations on Westinghouse's use of contract personnel, there are no express limits on that right in the present CBA.

In an apparent attempt to avoid the impact of the parties' bargaining history, Local 322 argues that this case is not a subcontracting case. That argument is at odds with Local 322's Complaint, which states that the basis for the action is that "Westinghouse has hired subcontractors to fill positions full time on the Company premises" doing bargaining unit work. Local 322 next argues that the bargaining history is irrelevant because its bargaining proposals were to limit subcontracting off the premises, not the hiring of "contract personnel" who are effectively employees. However, during negotiations in 1982, the Union specifically proposed a Work Preservation Clause stating that " [e]mployees not in the bargaining unit will not perform any bargaining unit work." No distinction was made between subcontracting and hiring "contract personnel;" no distinction was drawn between work on and off the premises. The Union sought to prohibit all non-bargaining unit employees from performing any bargaining unit work.

The bargaining history is clearly relevant. The Union sought broad limits on Westinghouse's ability to use non-bargaining unit personnel to perform bargaining unit tasks. Those limits were not included in the final agreement. The issue of the line of demarcation between permissible and impermissible hiring of contract personnel was never effectively raised below. Summary judgment was properly granted.

AFFIRMED.