Trowel Trades Employees Health and Welfare Trust Fund Ofdade County et al., Plaintiffs-appellees, v. Edward L. Nezelek, Inc., a Florida Corporation, Defendant-appellant, 645 F.2d 322 (5th Cir. 1979)

Edward L. Nezelek, Inc. (Nezelek) appeals from a district court judgment, 482 F. Supp. 846, awarding $8,900 in delinquent fringe benefit contributions plus interest, costs, attorneys' fees and accountants' fees to various union trust funds (Funds). We affirm.

Nezelek, a general contractor, signed collective bargaining agreements with Local 7 of the International Union of Bricklayers and Allied Craftsmen. The agreements required Nezelek to make fringe benefit contributions to appellee Funds for work performed under the agreements. Article XIV of those agreements also contained a subcontracting clause that required Nezelek to subcontract only to employers who had signed the agreements.¹  Nezelek contracted with Environmental Concrete Corporation for it to perform subcontracting work on the Fleming Key Animal Control Center Project. Environmental Concrete was not a signatory to the collective bargaining agreements, and neither Nezelek nor Environmental Concrete made fringe benefit contributions to the Funds for work performed on the project.

The Funds filed suit, alleging that Nezelek had breached the agreements by failing to make fringe benefit contributions for the work performed on the Fleming Key Project. After a non-jury trial the district court concluded that Nezelek breached the agreements by failing to subcontract work to a signatory employer. It further held that Nezelek must pay fringe benefit contributions for work performed on the project.

At trial Nezelek contended that the subcontracting clause violated Florida's right-to-work law, 25A Fla.Stat.Ann.Const. Art. 1, § 6 (West 1970), but the district court did not address this issue when it entered judgment following trial. Nezelek moved for a new trial on this issue, and the motion was granted. After receiving legal memoranda on the right-to-work issue but without hearing additional evidence, the district court concluded that the subcontracting clause did not violate the Florida right-to-work provision and again entered judgment for the Funds. Nezelek's subsequent motion for rehearing was denied.

The Funds contend that we are without jurisdiction because Nezelek's notice of appeal was untimely under F.R.A.P. 4(a).²  The district court's first judgment, which did not address the right-to-work issue even though it had been raised at trial, was entered January 31, 1979. Nezelek timely served a motion for a new trial on this issue on February 8. The district court granted the new trial motion on April 6 and, after receiving legal memoranda from both parties, entered a second judgment on September 10, 1979. Nezelek moved for rehearing four days later, and this motion was denied on September 25. Nezelek filed a notice of appeal on October 17, 1979.

The Funds correctly point out that the October 17 notice of appeal was not timely as to the September 10 final judgment. They then argue that Nezelek's subsequent motion for rehearing did not toll the time for filing an appeal because Rule 4(a) only affords an appellant one opportunity to ask the district court to re-examine its judgment and Nezelek previously took that opportunity when it filed the motion for new trial after the first judgment.

We find that Nezelek's motion for rehearing extended the time for appeal to 30 days after the district court's September 25 denial of that motion. Although we have held repeatedly that successive motions " 'of the kind enumerated in Rule 4(a)' " will not toll indefinitely the prescribed period for filing a notice of appeal, Dixie Sand & Gravel Co. v. TVA, 631 F.2d 73, 74 (5th Cir. 1980), quoting Wansor v. George Hantscho Co., 570 F.2d 1202, 1206 (5th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 350, 58 L. Ed. 2d 344 (1978), these holdings do not apply where the district court grants appellant's motion for a new trial on an issue not addressed in the original judgment and the appellant moves for reconsideration after the new trial on that issue, see F.R.A.P. 4(a) (4); 9 Moore's Fed.Practice P 204.12(1) n.7. The district court did not render judgment based on the right-to-work issue until September 10, and Rule 4(a) allowed Nezelek one opportunity to ask the court to reconsider that judgment. Since Nezelek's notice of appeal was filed within 30 days of the district court's denial of reconsideration, the appeal is timely.³ 

II. Right-to-Work and the Subcontracting Clause

Nezelek vigorously argues that the subcontracting clause that the Funds seek to enforce violates Florida's right-to-work provision.⁴  The gist of the argument is that the clause permits the union to accomplish indirectly what Florida's right-to-work law prevents it from accomplishing directly: pressuring workers to join unions. Since the clause forces Nezelek to retain only union subcontractors presumably employing mostly union members and excludes nonunion subcontractors having non-union workers, it arguably has the effect of foreclosing workers from jobs based upon non-membership in a union.⁵ 

The Florida Constitution prohibits explicit closed, union, or agency shop provisions in collective bargaining agreements, see Schermerhorn v. Retail Clerks, 141 So. 2d 269 (Fla.1962), cause for reargument set, 373 U.S. 746, 83 S. Ct. 1461, 10 L. Ed. 2d 678, affirmed, 375 U.S. 96, 11 L. Ed. 2d 179 (1963); Local No. 234 v. Henley & Beckwith, Inc., 66 So. 2d 818 (Fla.1953); Local No. 519 v. Robertson, 44 So. 2d 899 (Fla.1950). However, Nezelek's collective bargaining agreement contains no such union security clause. Nevertheless, Nezelek contends that Florida's right-to-work provision extends to provisions in collective bargaining agreements like the subcontracting clause which potentially have the same effect as the proscribed security clauses.

Assuming that Florida's right-to-work provision can be stretched as far as Nezelek suggests without running afoul of federal labor law,⁶  Nezelek failed to adduce evidence that the subcontracting clause in its collective bargaining agreement had the proscribed effect. Florida courts have consistently rejected employer efforts to apply the state's right-to-work law to provisions that on their face are not union security provisions "without extensive evidence as to the actual operation of the agreement," McCann Plumbing Co. v. Plumbing Industry Program, 105 So. 2d 26, 28 (Fla.Dist.Ct.App.1958). See also Wall v. Bureau of Lathing & Plastering, 117 So. 2d 767 (Fla.Dist.Ct.App.1960).

Although Nezelek presents a plausible argument that the subcontracting clause could have the effect proscribed by the right-to-work law, it produced no evidence indicating that the clause did have that effect. Nezelek has not shown, for instance, that signatory subcontractors would discriminate against non-union workers.⁷  Moreover, the Funds presented uncontradicted testimony that non-union workers were eligible for and did receive benefits from the trust funds.

In an attempt to shore up the evidentiary shortcomings of its argument Nezelek also asserts that Connell Construction Co. v. Plumbers & Steamfitters, 421 U.S. 616, 95 S. Ct. 1830, 44 L. Ed. 2d 418 (1975), establishes as a matter of law that subcontracting clauses such as the one before us have the effect of excluding non-union workers from jobs. We find nothing in that opinion to support this blanket assertion. In Connell the Supreme Court held that the construction industry proviso in § 8(e) of the NLRA, 29 U.S.C. § 158(e), does not insulate from federal antitrust suit subcontracting agreements outside the context of a collective bargaining relationship and not limited to a particular jobsite. The Court was concerned that subcontracting clauses of this nature tend to exclude non-union subcontractors from the market, 421 U.S. at 623-25, 95 S. Ct. at 1835-36.

Nezelek would have us hold that because the subcontracting clause may exclude non-union subcontractors it must necessarily exclude non-union workers.⁸  We decline to do so. Florida's right-to-work provision guarantees that workers may not be excluded from jobs on the basis of membership or non-membership in a union. It does not guarantee them the right to work for non-union employers. Employees of non-signatory subcontractors who are unable to work because their employer is unable to obtain subcontracts are out of work not because they are not union members but because their employer has not signed a collective bargaining agreement, see note 7, supra. At least in the absence of evidence that non-union workers are unable to obtain work from union subcontractors and therefore must resort to non-union subcontractors for work, Nezelek has failed to demonstrate that non-union employees' right to work is in any way restrained by the subcontracting clause at issue.

Nezelek also argues that the district judge erred in refusing to hear additional testimony after granting a new trial on the right-to-work issue. The argument is undermined by Nezelek's actions during trial and its position in the motion for new trial. At trial Nezelek raised the right-to-work issue and rested on the evidence offered. In its motion for new trial Nezelek alleged that "(t)he testimony at trial together with a reading of (the subcontracting clause) of the Collective Bargaining Agreement" established a violation of Florida's right-to-work provision.⁹  In its motion for rehearing after entry of the second judgment Nezelek for the first time asserted that additional evidence was necessary to determine whether the subcontracting clause abridged the right-to-work provision.¹⁰ 

Under these circumstances we find that the district court did not abuse its discretion in deciding the right-to-work issue based on legal memoranda and without hearing additional testimony, see Hennessy v. Schmidt, 583 F.2d 302 (7th Cir. 1978); Kirby v. U. S., 297 F.2d 446 (5th Cir. 1961). Moreover, the district court properly denied Nezelek's motion for rehearing where the motion was nothing more than an effort by an unsuccessful party to introduce more evidence when that party had "ample opportunity to produce such evidence during the initial trial," Muhammad Temple of Islam v. City of Shreveport, 387 F. Supp. 1129, 1137 (W.D. La. 1974), affirmed, 517 F.2d 922 (5th Cir. 1975).

AFFIRMED.