Unpublished Disposition, 865 F.2d 264 (9th Cir. 1986)

MEMORANDUM^* 

The district court held that the refusal by appellees, employer-trustees of a joint labor-management trust fund (the Fund) established pursuant to 29 U.S.C. section 186 (section 302(c) (5) (B) of the Labor-Management Relations Act of 1947) (the Act), to vote for the appointment of an impartial umpire to resolve a voting deadlock which occurred between appellees and appellant union-trustees did not violate the provision of a trust agreement authorizing submission of certain disputes to an impartial umpire. The district court further held that it was not required by section 302(c) (5) (B) of the Act to appoint an impartial umpire because the dispute was not a matter of trust administration under the Act but rather concerned the interpretation of a collective bargaining agreement. Finally, the district court held that it lacked jurisdiction under section 301 of the Act.

Appellants contend that the terms of the trust agreement (the Agreement) require that the employer-trustees vote to appoint an impartial umpire to resolve the deadlock. Appellants argue further that even if the Agreement does not by its terms mandate appointment of an impartial umpire, section 302(c) (5) (B) of the Act requires court appointment of an impartial umpire. Last, appellants argue that the district court had jurisdiction under section 301 of the Act because the refusal of the employer-trustees to participate in the selection of an umpire allegedly violated the trust agreement.

We hold that the district court's holdings were correct and affirm its judgment.

STANDARD OF REVIEW

On appeal, appellants challenge the district court's interpretation of the language of the trust agreement and its application of sections 301 and 302 of the Act to the facts of the case. We review both of these issues de novo. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

DISCUSSION

The Roofers Local 49 and the Roofing Contractors Association are parties to an agreement and a declaration of trust (the Agreement) that establishes a fund to hold money to provide health and welfare benefits for the participants and beneficiaries of the Fund. Pursuant to the Agreement, in the determination of any matter the employer-trustees have one vote as a group and the union-trustees have one vote as a group. In the event of a voting deadlock, Section 3.13 of the Agreement provides that the Trustees are to meet for the purpose of agreeing upon an impartial umpire to break such deadlock by deciding the dispute in question. If this is unsuccessful, the agreement provides that either group of trustees may petition the district court to appoint an impartial umpire. However, Section 3.13 of the Agreement limits the scope of such an umpire's authority:

The scope of any such proceeding before such impartial umpire shall be limited to the provisions of this Trust Agreement and to the provisions of the rules, regulations and by-laws adopted by the Trustees and to the plan of benefits established by them. The impartial umpire shall have no jurisdiction or authority to change or modify the provisions of this Trust Agreement or to decide any issue arising under or involving the interpretation of any collective bargaining agreements between the Union, the Association and other Employers and such impartial umpire shall have no power or authority to change or modify any provisions of any such collective bargaining agreements.

The employer and union trustees reached a deadlock on September 16, 1986 on the issue of whether to institute collection proceedings against employers who had not made contributions to the Fund on behalf of composition shinglers. The union-trustees, claiming that composition shinglers are employees for whom contributions are required to be made, proposed that collection proceedings be instituted against "delinquent" signatory employers of composition shinglers. The employer-trustees voted against this proposal, and refused to participate in the selection of an umpire or in any arbitration designed to resolve the voting deadlock.

The central issue underlying the dispute between union and employer trustees is whether signatory employers are required to make contributions to the Fund on behalf of persons performing work as composition shinglers. This issue concerns the scope of the collective bargaining agreement, because signatory employers are required to make contributions only on behalf of employees under the jurisdiction of Local 49 who are covered by the collective bargaining agreement. Agreement between Roofing Contractors Association, Inc. and United Union of Roofers, Waterproofers and Allied Workers Local No. 49, Article XVIII, section 1. The collective bargaining agreement provides that "in the event the union shall obtain jurisdiction of composition shingling work this agreement may be opened upon thirty days written notice for negotiation of a wage rate for such work." Id., Article III. No such notice has been given and no negotiations to establish a wage rate for composition shinglers have taken place.

The question whether Local 49 has jurisdiction over composition shingling work is currently the subject of dispute between Local 49 and another union. The union-trustees' proposal to appoint an umpire to resolve the issue of whether the trustees should seek to compel signatory employers to make contributions to the Fund on behalf of composition shinglers would therefore require the umpire to decide first whether Local 49 has jurisdiction over composition shinglers and whether composition shinglers are covered by the terms of the collective bargaining agreement. This would involve the umpire in deciding an issue arising under or involving the interpretation of a collective bargaining agreement, in violation of the limitation on the umpire's jurisdiction imposed by Section 3.13 of the Agreement. Therefore, the employer-trustees are not required by the trust Agreement to vote for the appointment of an impartial umpire to resolve this dispute.

Section 302(c) (5) (B) of the Labor-Management Relations Act provides for the appointment of an impartial umpire when the employee and employer voting groups deadlock on a question of "administration" of the trust fund. Appellants claim that the dispute over bringing an action to force employers to make contributions for composition shingling work is a question of trust "administration." Appellants' contention that the current dispute is one of trust administration is not supported by the cases interpreting the section. See, e.g., Hawkins v. Bennett, 704 F.2d 1157, 1160-61 (9th Cir. 1983) (deadlock over proposal to increase benefits concerns "administration" of trust fund). In Fujikawa v. Gushiken, 823 F.2d 1341 (9th Cir. 1987), this court noted that the Second Circuit has held that the "deadlock" language in section 302(c) (5) (B) is applicable with respect to all issues that the trustees have authority to decide by virtue of the terms and provisions of the trust instruments. Id. at 1346 (citing Mahoney v. Fisher, 277 F.2d 5 (2d Cir. 1960); Barret v. Miller, 276 F.2d 429 (2d Cir. 1960)). Under this "broad" view of section 302(c) (5) (B), "administration" includes only those issues which the trustees have the power to decide under the trust agreement. Hawkins v. Bennett, 704 F.2d at 1160.

The dispute over contributions from employers of composition shinglers is not a matter of trust administration even under the "broad" interpretation of section 302(c) (5) (B) most favorable to appellants. This is because the trustees have no authority to interpret or alter the collective bargaining agreement. Determination of an employer's duty to make contributions under the terms of its collective bargaining agreement is not within the trustees' power. "The management-appointed and union-appointed trustees do not bargain with each other to set the terms of the employer-employee contract; they can ... [not] require employer contributions not required by the original collectively bargained contract...." Hawkins v. Bennett, 704 F.2d at 1159 n. 1.¹  Therefore, section 302(c) (5) (B) does not require appointment of an impartial umpire because the dispute is not one of trust administration under the Act.

Section 301(a) of the Labor-Management Relations Act gives the federal district courts jurisdiction over " [s]uits for violation of contracts between an employer and a labor organization...." 29 U.S.C. section 185(a) (1947). As construed in Brotherhood of Teamsters v. California Consolidators, 693 F.2d 81 (9th Cir. 1982), cert. denied, 469 U.S. 857 (1984), jurisdiction under section 301(a) does not extend to issues of representation and the appropriateness of the effective bargaining unit. Id. at 83. Because the underlying dispute concerns whether Local 49 represents composition shinglers under the terms of the collective bargaining agreement, the district court correctly concluded it lacked jurisdiction under section 301.

AFFIRMED.

LEAVY, Circuit Judge, dissenting:

I dissent. The immediate issue to be resolved is whether an action is to be instituted. In my view, the inability of the umpire to change or modify the provisions of the trust agreement is not at stake, nor would the umpire be asked to decide an issue arising under or involving interpretation of the collective bargaining agreement in a way that would be binding on the union or the Roofing Contractors Association or on other employers. The need for the umpire to read the trust agreement and the collective bargaining agreement and to draw some conclusion about their terms, incidental to his decision on whether to bring a collection action, is of no more significance than the need of a party to read a promissory note before instituting an action on it. If an action is instituted and any interpretation of the instrument is required, that interpretation will be done by a court.