Unpublished Disposition, 878 F.2d 385 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 385 (9th Cir. 1989)

Allen H. CUNHA, Jr., et al., Plaintiffs-Appellants,v.WARD FOODS, INC., Defendant-Appellee.

No. 87-2430.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 1988.Decided June 20, 1989.

Before CHOY, FLETCHER and ALARCON, Circuit Judges.


MEMORANDUM* 

In Cunha v. Ward Foods, 804 F.2d 1418, 1427 (9th Cir. 1986) (Cunha), we reversed the district court's directed verdict dismissing Count XI of the plaintiffs' complaint. Count XI alleged that Ward Foods ("Ward") violated the notice of termination provision in its 1971 labor agreements. Those agreements modified Ward's right to terminate its pension plan " [w]ith respect to the employees in the respective collective bargaining units represented" by the Hawaii Metal Trades Council and Local 142 of the International Longshoreman's and Warehouseman's Union ("ILWU").

We remanded to the district court in Cuhna because we concluded that there were factual disputes as to (1) which, if any, of the plaintiffs were members of the collective bargaining units represented by the Metal Trade Council and the ILWU; and (2) whether the parties to the 1971 labor agreements intended all of the participants in the employee pension plan to enjoy the benefits of the notice provision in the 1971 labor agreements. On remand, the district court refused the plaintiffs' request that the district court empanel a jury to decide these factual disputes. The district court decided on its own that (1) none of the plaintiffs were members of the collective bargaining units at issue; (2) the parties to the 1971 labor agreements did not intend the benefits of the notice provision to extend beyond the members of the collective bargaining units; and (3) the "directed verdict was proper in the original trial." The district court then dismissed Count XI of the plaintiffs' complaint.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Since the district court's dismissal was in effect a directed verdict against the plaintiffs, we examine the evidence in the light most favorable to the non-moving party to decide whether substantial evidence could support a finding in that party's favor. Othman v. Globe Indemnity, 759 F.2d 1458, 1463 (9th Cir. 1985). "A directed verdict is proper if the evidence permits only one reasonable conclusion." Cunha, 804 F.2d at 1423.

We reverse the district court's dismissal of Count XI and order the district court to empanel a jury and to permit the jury to decide the two factual disputes which were the basis of the remand in Cunha, namely (1) which, if any, of the plaintiffs were members of the collective bargaining units represented by the Metal Trade Council and the ILWU; and (2) whether the parties to the 1971 labor agreements intended all of the participants in the employee pension plan to enjoy the benefits of the notice provision in the 1971 labor agreements. See id. at 1427-29.

1. Membership in the Collective Bargaining Units

Ward's 1971 labor agreement with the Metal Trades Council states that

[t]his agreement covers all employees at the Kakaako shops of the company, excluding those employees with the company represented by the IMA as certified by the NLRB, clerical employees, shipping clerks, office janitors, time keepers, technical and professional employees, guards, watchmen and supervisors as defined in the Labor Management Relations Act of 1947, as amended.

Ward's 1971 labor agreement with the ILWU provides that

[e]mployees covered by this agreement are all employees of the Hilo branch of the company, including those employed in the steel fabrication shop, machine shop, tractor shop, trailer shop, warehouse and storeroom, janitors, truck drivers, shop clerks, and mechanics unattached to any shop and all regular full-time office clerical employees. It is expressly understood that the following are excluded from this agreement: confidential employees, professional employees, salesmen, guards and/or watchmen, and supervisors as defined in the Act.

The plaintiffs submitted answers to interrogatories, affidavits, and other material suggesting that some of them were members of the Metal Trades Council or the ILWU, and that they had jobs which fell within one of the categories of jobs covered under the 1971 labor agreements. For example, plaintiff Isaac Kai's affidavit and accompanying materials indicate that he was a member of the Metal Trades Council, and his answers to interrogatories indicate that he was employed as a welder. The question of whether a particular individual's job comes within one of the categories of jobs listed in a collective bargaining agreement is essentially a factual one, inasmuch as it entails an examination of "the employee's actual job responsibility, authority, and relationship to management." Walla Walla Union-Bulletin, Inc. v. National Labor Relations Board, 631 F.2d 609, 612 (9th Cir. 1980). Since the plaintiffs introduced substantial evidence that some of the plaintiffs were members of the collective bargaining agreement unit and since the question of collective bargaining unit membership is essentially a factual one, we hold that the district court erred in refusing to permit a jury to decide this issue.

2. The Intent of the Parties to the 1971 Labor Agreements

In Cunha, 804 F.2d at 1429, we held that " [i]f ... the employees were not part of the collective bargaining units ... then we would agree ... that an ambiguity exists in [1971 labor agreements'] language. It then would be necessary to look to the parties' intent to determine whether [the 1971 labor agreements] should be construed to require notice to employees not represented by the union in addition to requiring notice to the represented employees."

The plaintiffs submitted evidence to the district court suggesting that Ward intended the benefits of the notice provision to apply to all of the employees participating in the pension plan. For example, the plaintiffs submitted the testimony of one of the employer's executives, David Watson. Watson participated in the 1971 negotiations and testified that the employer's practice and intent was to treat all employees alike with respect to employee pension benefits. The plaintiffs also submitted evidence showing that the represented employees sought to eliminate mandatory contributions for all employees; this evidence suggests that the represented employees generally wished to obtain the same rights for unrepresented employees as for represented employees and thus supports the plaintiffs' contention that the represented employees intended the notice provision to extend to all employees. The question of intent in this case is a factual one. See Cunha, 804 F.2d at 1428 ("The parties' intent ... presented a question of fact"). Since the plaintiffs introduced substantial evidence that the parties to the 1971 labor agreements intended the benefits of the notice provision to extend to all of the employees and since this question is a factual one, we hold that the district court erred in refusing to permit a jury to decide this issue.

We REVERSE the district court's dismissal of Count XI and REMAND for trial before a jury.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3