United Association of Journeyman and Apprentice Plumbers and Pipefitters of the United States and Canada, Local 74 v. International Brotherhood of Electrical Workers, Local 313

Filing 45

REPORT AND RECOMMENDATIONS- denying 36 MOTION for Summary Judgment, granting-in-part 42 Cross Motion for Leave to Supplement the record, granting-in-part 27 MOTION for Summary Judgment, granting-in-part 41 MOTION to Strike. Please n ote that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 2/13/2015. Signed by Judge Sherry R. Fallon on 1/27/2015. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICE
PLUMBERS AND PIPEFITTERS OF THE
UNITED STATES AND CANADA,
LOCAL 74,
Plaintiff,
V.

)
)
)
)
)
)
)
)
)

Civil Action No. 12-1060-GMS-SRF

)
INTERN A TI ONAL BROTHERHOOD OF )
ELECTRICAL WORKERS, LOCAL 313, )
)
Defendant.
)

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Presently before the court in this action for breach of contract and violation of Section

302 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186, are the following
motions: (1) plaintiff United Association of Journeymen and Apprentice Plumbers and
Pipefitters of the United States and Canada, Local 74's ("Local 74" or "plaintiff') motion for
summary judgment (D.I. 27); (2) defendant International Brotherhood of Electrical Workers,
Local 313's ("Local 313" or "defendant") cross-motion for summary judgment (D.I. 36); (3)
Local 74's motion to strike Local 313's December 4, 2013 letter to the court (D.I. 41); and (4)
Local 313 's cross motion for leave to supplement the record on summary judgment (D.I. 42).
For the following reasons, I recommend that the court grant-in-part Local 74's motion for
summary judgment, deny Local 313 's cross-motion for summary judgment, grant-in-part Local
74's motion to strike, and grant-in-part Local 313 's cross motion for leave to supplement the
record.

II.

BACKGROUND
Cushman and Wakefield ("C& W"), a commercial real estate and property management

company, maintains and operates two commercial data centers located in Newark, Delaware
("CDC 1")and Wilmington, Delaware ("CDC 2"). (D.I. 1 at~~ 7, 1O; D.I. 6 at~~ 7, 10) Since
CDC 1 and CDC 2 opened in 2004, C& W and its predecessors have employed approximately
fifty members of unincorporated labor associations Local 74 and Local 313 as building engineers
and maintenance personnel. (D.I. 1 at~~ 3, 4, 11; D.I. 6 at~~ 3, 4, 11) Two thirds of the
maintenance services force is comprised of electricians from Local 313, and the remaining one
third is comprised of plumbers from Local 74. (D.I. 39, Ex. 1at3)
Since 2004, Local 313 has served as the exclusive bargaining representative for a single
bargaining unit comprised of the employees from Local 74 and Local 313 at CDC 1 and CDC 2.
(D.I. 37, Ex. Cat 23: 11 - 24: 15) In 2004, Local 313 entered into a collective bargaining
agreement with EMCOR, Inc., the maintenance subcontractor. (D.I. 37, Ex.Cat 24:16-26:11)
EMCOR was replaced by PM Realty in 2006, and PM Realty continued to recognize Local 313
as the exclusive bargaining representative under the terms of the collective bargaining agreement
between EMCOR and Local 313.
When the 2004 collective bargaining agreement expired, Local 313 and PM Realty
entered into a new collective bargaining agreement covering the period from December 2008
through November 2011 (the "CBA"). (D.I. 1 at~ 12; D.I. 6 at~ 12; D.I. 29, Ex. B) Although
Local 74 was not a signatory to the CBA, the CBA contained a clause recognizing the
employment of members of Local 74 and incorporating the wage, benefit, and dues scales of
Local 74 into the CBA. 1 (D.I. 1 at~ 13; D.I. 6 at~ 13; D.I. 29, Ex. B) Pursuant to the terms of

1

Specifically, the union security clause at§ 7(1) of the CBA provides that:
2

the CBA, C& W deducted a working dues percentage 2 from the paychecks of employees from
both Local 313 and Local 74 on a monthly basis and forwarded the deducted amounts to Local
313. (D.I. 1 at~ 18; D.I. 6 at~ 18; D.I. 31, Ex. D at 46:7 - 47:24) The employees of Local 74
each signed a written authorization card permitting C& W to deduct dues and fees from their pay
"in satisfaction of working dues," and requiring that those deductions be remitted to Local 74.
(D.I. 1 at~ 25; D.I. 33,

Ex.Fat~~

3-4)

Until June 2011, Local 313 retained the amounts due for its own members and forwarded
the amounts due for Local 74 members to the GEM Group, the administrator of the Local 74
benefit funds. (D.1. 1 at~~ 20-21; D.I. 6 at~~ 20-21; D.I. 31, Ex. D at 49:21 - 50:3) Beginning
All present bargaining unit employees who are members of the Union on the
effective date of this agreement or on the date of execution of this agreement,
whichever is the later, shall remain members of the Union in good standing as a
condition of employment. All bargaining unit employees who are not members of
the Union and all such employees who are hired hereafter shall become and
remain members in good standing of the Union as a condition of employment ...
For the purpose of this provision, membership in good standing in Plumbers &
Pipefitters Local Union 74, which shall also provide employees under this
agreement, shall be considered as compliance with this provision.
(D.I. 29, Ex.Bat 2) Moreover,§ lO(a) and (b) of the CBA, entitled "Wages and Trust Funds,"
lists the procedural requirements for paying employees:
(a) The Company hereby agrees to checkoff from wages of any employee
employed by the Company under the agreement dues and/or assessments in the
amount specified in the Union's Bylaws. (For the purpose of this provision, the
Bylaws of Plumbers & Pipefitters Local 74 shall apply with respect to any of its
members employed under this agreement) and to remit said amount to the Union.
(b) The obligations of the Company under this provision shall apply only to those
employees who have voluntarily signed a valid authorization card.
(D.I. 29, Ex. Bat 5)
2

Local 74 assesses its members a working dues percentage of 5 .25% of their gross hourly wage.
(DJ. 1 at~ 16; D.I. 6 at~ 16; D.I. 29, Ex.Bat Ex. A) Local 313 assessed its members a working
dues percentage of 3.8% of their gross hourly wage until September or October of 2012, when
the rate increased to 5%. (D.I. 1 at~ 17; D.I. 6 at~ 17; D.I. 29, Ex.Bat Ex. A; D.I. 31, Ex. D at
47:10-11; D.I. 32, Ex. D at 86:8-10)
3

in June 2011, Local 313 business manager Douglas Drummond instituted a new practice, based
on his interpretation of the agency shop clause found at § 10(e) of the CBA, 3 in which Local 313
kept a portion of Local 74 dues equal to the amount of its own dues instead of forwarding the
entire amount withheld to Local 74. (D.I. 1 at if 22; D.I. 31, Ex. D at 50:8 - 54: 1; Ex. E) As a
result, Local 74 began receiving the difference between 5.25% and 3.8%, as opposed to the full
5.25%. (D.I. 1atif24; D.I. 6 at if 24) As of July 11, 2013, the amount of dues retained by Local
313 from the wages of members of Local 74 totaled $106,180.06. (D.I. 33, Ex.Fat if 8 and Ex.
3)
During the term of the CBA, PM Realty was replaced as the maintenance contractor by
C&W, which continued the terms of PM Realty's CBA until a new agreement could be
negotiated. (D.I. 37, Ex. Cat 26: 10 - 27: 17) Negotiations on a new collective bargaining
agreement between C& W and Local 313 began in October 2011, and Local 74 again did not
participate in the negotiations. (D.I. 37, Ex. Cat 38: 17-22) Local 313 and C&W reached
agreement on all terms except the language of the union security clause, found at§ 7. (D.I. 37,
Ex. Bat 3) The disputed language reads as follows:
All present bargaining unit employees who are members of the Union on the
effective date of this agreement or on the date of execution of this agreement,
whichever is the latter, shall remain members of the Union in good standing as a
condition of employment. All bargaining unit employees who are not
3

Section 10(e) of the CBA provides as follows:
(e) Agency Shop Clause. All employees covered by this agreement shall as a
condition of continued employment, pay to the employee's exclusive collective
bargaining representative an amount of money equal to that paid by other
employees in the bargaining unit who are members of the Union, which shall be
limited to an amount of money equal to the Union's regular and usual initiation or
administration processing fees, and its regular and usual dates and assessments.

(D.I. 29, Ex. B at 6)

4

members of the Union and all such employees who are hired hereafter shall
become and remain members in good standing of the Union as a condition of
employment on and after the 31st day following the beginning of their
employment, or on and after the 31st day following the effective date of this
agreement or the date of execution of this agreement, whichever is the latter. For
purposes of this provision, membership in good standing in the Plumbers
and Pipefitters Local Union 74 shall be considered as compliance with this
provision.

(D.I. 37, Ex. A at§ 7(1); see also D.I. 29, Ex.Bat§ 7(1)) (emphasis added). Specifically, Local
313 sought to remove the language indicating that membership in Local 74 is equivalent to
membership in Local 313. (D.I. 37, Ex.Bat 4) C&W insisted that the language be retained, and
the parties reached an impasse on the issue. (Id.)
Local 313 filed unfair labor practice charges with the National Labor Relations Board
("NLRB") in response to C&W's refusal to enter into a collective bargaining agreement with
Local 313 that would include terms compelling Local 74 to pay dues to Local 313 as a condition
of employment. (D.I. 37, Ex. B) Local 313 prevailed against C&W before the NLRB, which
concluded that the dispute did not involve a mandatory subject for bargaining upon which the
employer could insist to impasse. (Id. at 6) ("[C&W's] insistence that [Local 74's] membership
be considered membership for the purposes of the union security clause flies in the face of the
statutory scheme that permits union security clauses in the first place."). 4

4

Prior to the issuance of the NLRB' s decision, the parties entered into an agreement providing
that the disputed language would be stricken from the union security clause if the three-member
panel of the NLRB determined that C& W was not justified in its insistence that the specific
reference to Local 74 be retained. (D.I. 32, Ex. D at 94:6-12) If, however, the NLRB ruled in
favor of Local 74, the language would be retained. (Id.) Following the NLRB's ruling in favor
of Local 313, the disputed language was stricken from the existing CBA. This Report and
Recommendation addresses the rights and obligations of the parties under the language of the
collective bargaining agreements prior to any modifications arising from the NLRB's decision
issued on November 19, 2013.
5

III.

LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). Pursuant to Rule
56( c)(1 ), a party asserting that a fact is genuinely disputed must support its contention either by
citing to "particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for the purposes of the motion only), admissions, interrogatory answers, or other materials," or
by "showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R.
Civ. P. 56(c)(l)(A) & (B).
The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The burden then shifts to the
non-movant to demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891
F.2d 458, 460-61 (3d Cir.1989). When determining whether a genuine issue of material fact
exists, the court must view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380
(2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some
evidence in support of the nonmoving party may not be sufficient to deny a motion for summary

6

judgment. Rather, there must be enough evidence to enable a jury reasonably to find for the
nonmoving party on the issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

If the nonmoving party fails to make a sufficient showing on an essential element of its case on
which it bears the burden of proof, the moving party is entitled to judgment as a matter of law.

See Celotex Corp. v. Catrett, 477 U.S. at 322.

IV.

DISCUSSION
The enforcement and interpretation of collective bargaining agreements under§ 301 of

the LMRA, 29 U.S.C. § 185, is governed by substantive federal law. Textile Workers Union v.

Lincoln Mills, 353 U.S. 448, 456 (1957). However, traditional rules for contractual
interpretation apply to the extent that their application is consistent with federal labor policies.

Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1284 (3d Cir. 1991). In
keeping with these principles, the court must first inquire whether the contract in question is
ambiguous. Stendaro v. Fed. Nat 'l Mortgage Ass 'n, 991 F.2d 1089, 1094 (3d Cir. 1993). The
existence or absence of ambiguity is a "threshold" question of law for the court to decide. Int 'l

Union, United Auto., Aerospace & Agric. Implement Workers v. Mack Trucks, Inc., 917 F.2d
107, 111 (3d Cir. 1990); Teamsters Indus. Employees Welfare Fund v. Rolls-Royce Motor Cars

Inc., 989 F.2d 132, 135 (3d Cir. 1966).
A.

Terms of the CBA

It is assumed that "the intent of the parties to an instrument is embodied in the writing

itself, and when the words are clear and unambiguous the intent is to be discovered only from the
express language of the agreement." Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d
107, 111 (3d Cir. 1994). A contract provision is ambiguous if it is susceptible to two reasonable
alternative interpretations. Mellon Bank, NA. v. Aetna Bus. Credit, Inc., 619 F.2d 1001, 1011

7

(3d Cir. 1980). Each provision in question must be viewed consistently with the entire document
and the relative positions and purposes of the parties. Kellogg Co. v. N.L.R.B., 457 F.2d 519,
524 (6th Cir. 1972). "In these circumstances, the court may consider the words of the contract,
the alternative meaning suggested by counsel, and the nature of the objective evidence to be
offered in support of that meaning." Sheet Metal Workers, Local 19, 949 F.2d at 1284. In
keeping with basic contract principles, a collective bargaining agreement's terms should be given
a reasonable construction, and "must be construed so as to render none nugatory and avoid
illusory promises." Int'! Union, United Auto., Aerospace & Agric. Implement Workers v. YardMan, Inc., 716 F.2d 1476 (6th Cir. 1983); Kellogg Co., 457 F.2d at 525.
In support of its motion for summary judgment, Local 74 alleges that Local 313 breached
the terms of the CBA by withholding working dues checkoffs from Local 74. Local 74 contends
that the CBA calls for Local 74 to receive the "dues and/or assessments" deducted from the
paychecks of its members, consistent with the parties' interpretation of the contract language
from 2004 to June 2011. 5 (D.I. 28 at 9-11) According to Local 74, ifthe agency shop clause
provision were given the construction proposed by Local 313, the CBA's reference to Local 74
and its bylaws in § 1O(a) would be superfluous. (Id.) Moreover, Local 74 argues that the union
security clause at § 7 of the CBA requires its members to pay their dues and fees to remain in
good standing, and it is illogical to suggest that Local 74 members are required to pay both Local
74 working dues and Local 313 working dues in full. (Id. at 12)

5

Local 74 contends that the parties' course of conduct under the CBA from 2004 to June 2011
supports its interpretation of the CBA because during that time, C&W and its predecessors
transmitted all dues deducted from employee paychecks to Local 313, and Local 313 then
forwarded the total amount deducted from Local 74 members to Local 74. (Id. at 13) Former
business manager Steven Horgan initiated this practice in 2004 and 2005, and business manager
Donald Drummond continued this same course of conduct from 2005 to June 2011. (Id. at 1314) According to Local 74, the consistent course of conduct may be viewed as evidence of an
oral contract between Local 313 and Local 74. (Id. at 16)

8

In response, Local 313 alleges that it did not breach the plain, unambiguous language of
the CBA by retaining a portion of the dues checkoffs of Local 74 members because the CBA
clearly states that union dues must be remitted and paid to Local 313 pursuant to the agency shop
clause. (D .I. 3 7 at 9-10) Local 313 further contends that construing the language of the agency
shop clause in the manner proposed by Local 74 would contradict§ 8(a)(3) of the National Labor
Relations Act ("NLRA"), 29 U.S.C. § 158(a)(3), which protects collective bargaining
representatives from employees who enjoy the benefits of association with the union without
contributing financially. (Id. at 12) Under the parol evidence rule, Local 313 asserts that Local
74 cannot rely on any alleged oral agreement to supersede or modify the unambiguous terms of
the CBA, and any oral agreement would be invalid to the extent that it contradicts the express
terms of the CBA. (Id. at 13) Even if a prior course of conduct created implied obligations,
Local 313 asserts that those did not survive the expiration of the CBA in 2011. (Id. at 15)
The court must determine the existence or absence of ambiguity in a collective
bargaining agreement. Int 'l Union, United Auto., Aerospace & Agric. Implement Workers v.
Mack Trucks, Inc., 917 F.2d 107, 111 (3d Cir. 1990); Teamsters Indus. Employees Welfare Fund
v. Rolls-Royce Motor Cars Inc., 989 F.2d 132, 135 (3d Cir. 1966). It is assumed that "the intent

of the parties to an instrument is embodied in the writing itself, and when the words are clear and
unambiguous the intent is to be discovered only from the express language of the agreement."
Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107, 111 (3d Cir. 1994). "[T]he

collective bargaining agreement's terms must be construed so as to render none nugatory and
avoid illusory promises." Int 'l Union, United Auto., Aerospace & Agric. Implement Workers v.
Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983).

9

In the present case, the language of the CBA is ambiguous as to whether Local 74 owes
any dues to Local 313. Although§ 1 of the CBA defines references to the "Union" in the
agreement as pertaining to Local 313 (D.I. 29, Ex. B at 1), § 7(1) of the CBA provides that
membership in good standing in Local 74 qualifies as membership in the "Union" as well. This
provision does not set forth additional requirements for members of Local 74 beyond what is
required to remain in good standing in their own union. Section 7(3)(b) of the CBA provides
that the wages, hours, and terms and conditions of employment of all employees, whether from
Local 74 or Local 313, shall be governed by the terms of the CBA. (D.I. 29, Ex.Bat 3)
Consistent with the language of§ 7, § lO(a) of the CBA indicates that the assessment of
dues is governed by each union's respective bylaws, but provides that such dues shall be remitted
to the "Union." (D.1. 29, Ex. Bat 5) The Local 74 bylaws require that its members pay dues at a
rate of 5.25% to Local 74 to remain in good standing. (D.I. 1 at~ 16; D.I. 6 at~ 16; D.I. 29, Ex.
B at Ex. A) However, the agency shop clause contained in § 10(e) of the CBA indicates that all
employees are required to pay dues to Local 313 as the exclusive collective bargaining
representative in an amount equal to members of Local 313.
Whereas§§ 7(1) and lO(a) of the CBA suggest that members of Local 74 need only remit
dues to their own union, § 10(e) could be construed to require all employees, regardless of
whether they are associated with Local 74 or Local 313, to remit dues to Local 313 as
compensation for its role as the exclusive collective bargaining representative. Therefore, the
terms of the CBA are ambiguous, and the court must next construe the terms of the CBA in
accordance with general principles of contract interpretation.
"Collective bargaining agreements, like other contracts, are to be given a reasonable
construction, not one which results in injustice and absurdity." Kellogg Co. v. NLRB, 457 F.2d

10

519, 525 (6th Cir. 1972). In construing the ambiguous terms of a collective bargaining
agreement, "the Court may consider the words of the contract, the alternative meaning suggested
by counsel, and the nature of the objective evidence to be offered in support of that meaning."

Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1284 (3d Cir. 1991). It is a
"cardinal rule" of contractual interpretation that words or provisions should not be rendered
meaningless. Pac. Employers Ins. Co. v. Global Reinsurance Corp. ofAm., 693 F.3d 417, 430
(3d Cir. 2012).
The language in § 10(a) of the CBA instructs C& W to "remit said amount [of dues and/or
assessments] to the Union," but this language does not automatically permit Local 313 to retain
dues from members of Local 74 for its own purposes. To construe the provision in this manner
would violate the "cardinal rule" of contractual interpretation by negating the parenthetical
language of the very same subsection, which provides that, "[f]or the purpose of this provision,
the Bylaws of Plumbers & Pipefitters Local 74 shall apply with respect to any of its members
employed under this agreement." See Pac. Employers Ins. Co. v. Global Reinsurance Corp. of

Am., 693 F.3d 417, 430 (3d Cir. 2012). The bylaws of Local 74 require its members to pay
5.25 % of their wages as working dues to Local 74, with no provision for sharing those dues with
other unions.
To the extent that Local 313 claims that it is the "Union" to which the dues must be
remitted, this argument ignores the language of§ 7(1) of the CBA. Section 7(1) requires
employees to "become and remain members in good standing of the Union as a condition of
employment," with "Union" being defined at§ 1 of the CBA as referring to Local 313.
However, § 7(1) goes on to state that "membership in good standing in Plumbers and Pipefitters
Local Union 74 ... shall be considered as compliance [sic] with this provision." (D.I. 29, Ex. B

11

at § 7) This carve-out indicates that members of Local 74 are considered "members in good
standing of the Union" simply by being members of Local 74, with no additional requirement
that they join Local 313 as well. Any other interpretation would render the specific mention of
Local 74 in this provision meaningless.
Local 313 relies on the Agency Shop Clause at § 10(e) in support of its proposed
interpretation of the CBA, alleging that § 10( e) plainly requires all employees covered by the
CBA to pay dues to Local 313 as their exclusive collective bargaining representative. (D.I. 37 at
10-12) However, this interpretation would render the CBA's specific references to Local 74 in
§§ 7(1) and 10( a) superfluous, in contravention of the "cardinal rule" of contract interpretation
against rendering a contractual provision "mere surplusage." See Pac. Employers Ins., 693 F.3d
at 430; JFE Steel Corp. v. !CI Ams., Inc., 797 F. Supp. 2d 452, 469 (D. Del. 2011). In contrast,
the Agency Shop Clause at § 10(e) is not rendered meaningless by the court's proffered
construction because the provision continues to apply to any other employees covered by the
terms of the CBA who are not subject to the carve-outs for members of Local 74 found at§§ 7
and 10. Therefore, the language of the CBA, viewed as a whole, does not strongly support Local
313' s proposed interpretation.
The court is not persuaded by Local 313' s contention that the dues apportionment it
advocates is the only reasonable interpretation of the CBA. Local 313 's contention that its
construction would never result in a double payment of dues by a member of Local 74 is belied
by a hypothetical in which Local 313 's dues assessment exceeds the amount of dues assessed by
Local 74. If Local 313 's interpretation of the CBA were accepted in view of this hypothetical,
an employee member of Local 74 could conceivably be obligated to remit dues in the same
amount as a member of Local 313 while maintaining "good standing" in Local 74 by payment of

12

Local 74's dues assessment as well. Such a double payment cannot reasonably reflect the intent
underlying the terms of the CBA.
B.

Written Authorization to Deduct Dues

The extrinsic evidence further supports Local 74's proposed construction of the CBA.
Local 74 alleges that, because none of the affected employees signed a written authorization card
permitting Local 313 to seize a portion of his or her pay, Local 313 is lawfully prohibited from
deducting such dues from Local 74 members' wages pursuant to§ 302 of the LMRA, 29 U.S.C.
§ 186. (D.I. 28 at 17) Local 74 challenges Local 313 's reliance on the Supreme Court's decision
in Arroyo v. United States, 359 U.S. 419, 421 (1959), because Arroyo addressed whether an
official who misappropriated money that had been properly deducted and delivered to a trust
fund could be criminally punished under that section, and has been distinguished by the Supreme
Court on that basis. 6 (D.I. 38 at 9-10)
In response, Local 313 alleges that the money deducted from the paychecks was "in
payment of membership dues in a labor organization," and members of Local 74 authorized
C& W in writing to make the deductions. Local 313 contends that no additional explicit
authorization was required because once C& W forwarded the lawfully deducted dues to Local
313, the proper distribution of the dues was governed by the terms of the CBA. (D.I. 37 at 17)
Accordingly, Local 313 contends that the dues deductions sent to Local 313 were lawfully made,
and whether Local 3 13 was permitted to retain a portion of the dues is a separate contractual
issue outside the scope of§ 302. (Id. at 16-17)
Section 302(a) of the LMRA provides that "[i]t shall be unlawful for any employer ... to
pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value - (1) to
6

See Local I 44 Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 591 (1993) (noting that
the proposition cited in Arroyo "was a criminal prosecution brought under§ 302(d), and the
statement was therefore pure dictum.").
13

any representative of any of his employees ... ; or (2) to any labor organization ... " 29 U.S.C.
§ 186(a). Section 302(c)(4) contains an exception to this provision "with respect to money
deducted from the wages of employees in payment of membership dues in a labor organization:

Provided, That the employer has received from each employee, on whose account such
deductions are made, a written assignment ... " 29 U.S.C. § 186(c)(4). Moreover,§ lO(b) of the
CBA provides that "[t]he obligations of the Company under this provision shall apply only to
those employees who have voluntarily signed a valid dues deduction authorization card," and §
10(c) identifies the form of deduction authorization card to be used and specifies that the form is
"to be supplied ... by the Union." (D.I. 29, Ex.Bat§ 10)
The parties agree that the money deducted from the employees' paychecks by the
employer was "in payment of membership dues in a labor organization" pursuant to § 302(a).
(D.I. 1 at~ 18) Moreover, it is undisputed that members of Local 74 authorized C&W in writing
to make deductions for union dues from their paychecks. (D.I. 1 at~ 25; D.I. 33, Exs. Fl & F2)
However, the members of Local 74 did not explicitly authorize Local 313 to retain a portion of
their wages. Pursuant to their signed authorization cards, members of Local 74 agreed to assign
"all dues and assessments which I am required to pay to U.A. Local 74 for each hour I work. I
authorize and direct you to deduct such amount from my pay ... and to remit same to Local
Union No. 74 at such times and in such manner as may be agreed upon between you and Local
Union No. 74 at any time while this authorization is in effect." 7 (D.I. 33, Ex. Fl) The language
of the authorization cards contemplates that the employer will deduct dues from the wages of
7

The record also contains "Payment Election Forms," in which members of Local 74 "elect to
have Cushman & Wakefield National, [the] Employer, make payroll deductions for the above in
the amount designated by the Plumbers and Pipefitters, Local Union 74." (D.I. 34, Ex. F2)
Although these forms do not contain the same express language as the dues authorization cards,
they demonstrate a consistent practice of ensuring that payments are deducted for the benefit of
Local 74.
14

Local 74 members, but unequivocally states that the dues must ultimately be remitted to Local
74. (Id.) In contrast, the authorization cards did not provide similar authorization for dues
deductions on behalf of Local 313. (D.I. 33, Ex. Fl) In fact, the members of Local 74 and Local
313 signed separate forms authorizing wage deductions to be paid to their respective unions. (Id.
at Ex. F2)
Although members of Local 74 signed cards authorizing Local 313 to act as their
exclusive collective bargaining representative, nothing in those cards authorized Local 313 to
deduct dues from the wages of members of Local 74 on behalf of Local 313. (D.I. 34, Ex. G) In
view of the language contained in the authorization cards, Local 313 's proposed construction of
the CBA is implausible because it would result in a violation of both Local 74's bylaws, which
provide that members must pay 5.25% of their wages to Local 74 as working dues to remain in
good standing, and the CBA, which requires members of Local 74 to remain in good standing in
their own union as a condition of compliance with the CBA. (D.I. 30, Ex. C at 34:4-18; D.I. 29,
Ex.Bat§ 7(1)); See NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963) ('"Membership'
as a condition of employment is whittled down to its financial core.").
C.

The Parties' Course of Conduct

The parties' pattern of conduct further supports Local 74's interpretation of the CBA.
"Generally speaking, the practical interpretation of a contract by the parties to it for any
considerable period of time before it comes to be the subject of controversy is deemed of great, if
not controlling, influence." Old Colony Trust Co. v. Omaha, 230 U.S. 100, 118 (1913) (internal
citations omitted); see also New Jersey v. Delaware, 552 U.S. 597, 618-19 (2008) ("We turn,
finally, to the parties' prior course of conduct ... which ... , like the course of conduct of parties
to any contract, is evidence of its meaning."); Restatement (Second) of Contracts § 223 ("Unless

15

otherwise agreed, a course of dealing between the parties gives meaning to or supplements or
qualifies their agreement."). These general principles of contract interpretation also apply to
collective bargaining agreements. See Teamsters Industrial Employees Welfare Fund v. Rolls-

Royce Motor Cars, Inc., 989 F.2d 132, 137 (3d Cir. 1993).
The parties do not dispute that from 2004 to June 2011, Local 313 received the dues from
the employer on behalf of Local 74 and distributed those dues in full to Local 74 without taking a
portion of those dues for itself. (D.I. 30, Ex.Cat 32:14-19) The parties also agree that
Drummond's decision to retain a percentage of the Local 74 dues for Local 313 beginning in
June 2011 was a departure from the parties' previous pattern of conduct. 8 (D.I. 31, Ex. D at 46:7

8

In the Confidential Witness Affidavit of Douglas Drummond from the NLRB proceedings,
dated August 2, 2012, Drummond indicated that
[i]n the last 12 months, Local 313 has charged Local 74's members 5.25% and
has been retaining 3.8% of those dues for Local 313 and has been remitting the
remainder (which is 1.45%) to Local 74. The CBA has always required that
5.25% for dues-checkoff for Local 74 members and 3.8% for Local 313 members
... There's no written agreement governing how much of the dues assessments
should be remitted or how the dues should be split between the members' "home
local" and the working local. Prior to about a year ago, Local 313 remitted 100%
of the 5.25% dues assessment of Local 74 members' wages to Local 74.
Currently, it's our understanding the [sic] Local 74 is planning to file a Section
301 action concerning Local 313 keeping a portion of the Local 74 members'
dues assessments.

(DJ. 33, Ex. Eat APP231) Drummond's deposition testimony further confirms that a
change in the parties' previous course of conduct occurred in June 2011:
Q. So there was a point where you decided to start keeping a portion?
A. Yes.
Q. Okay. Prior to that, you had sent the full 5.25 percent, or whatever the earlier
percentage had been?
A. To the best of my knowledge, I believe we did.
(D.I. 31, Ex. D at 49:21-50:3)

16

- 50:3) The parties' previous course of conduct, in which dues were remitted in full to Local 74,
and Local 313 did not retain any portion of those dues, therefore supports Local 74' s proposed
construction of the CBA.
Local 313 's contentions that the parties' course of conduct may not be considered are
unfounded in the present case because the parties' previous pattern of conduct does not depart
from or alter the terms of the CBA. (D.I. 30, Ex.Cat 38:2 - 40:7); see also Dow Chem. Co. v.

Nova Chems. Corp. (Canada), 726 F. Supp. 2d 459, 463 (D. Del. 2010). In fact, the CBA
contemplates a separate understanding between members of Local 74 and Local 313 at § 7 (3 ),
which provides that, "in some instances where certain special qualifications are required, the
Union shall, though a separate understanding by and between it and Plumbers & Pipefitters
Local Union 74, refer applicants from Local 74 to fill such positions." (D.1. 29, Ex. A at§
7(3)(a)) Local 313 concedes that an oral agreement is only invalid to the extent that it
contradicts the express terms of the CBA. (D.I. 37 at 13-14) For these reasons, the parties'
previous course of conduct properly informs the court's construction of the CBA, regardless of
whether a written or oral agreement governing the distribution of wage deductions existed
between the parties. 9

Q. Okay. So between 2004 and 2011 ofliving under a Collective Bargaining
Agreement at CDC 1 and CDC 2, you deducted the full percentage, or you sent
the full percentage deducted from Local 74 members to Local 74?
A. The process was started in 2004, before me.
Q. Right.
A. When I got in office, I began to question why we were doing it. Until I got a
concrete answer, we continued the practice mistakenly.
(DJ. 31, Ex. D at 53:17-54:1)
9

In response to Local 74' s argument that an oral or written agreement existed, Local 313 alleges
that Local 74's proposed construction is flawed because Local 313 received no consideration
under the CBA. (DJ. 37 at 14-15) However, the record reflects that EMCOR wanted to deal
with only Local 313, but association with Local 74 was necessary because members of Local 313
17

Citing the Supreme Court's decision in Litton Financial Printing Division v. NLRB, 501
U.S. 190, 207 (1991 ), Local 313 alleges that any implied obligations created by the parties'
previous course of conduct terminated with the expiration of the CBA in 2011. (D.I. 37 at 15)
As a preliminary matter, the court notes that the portion of Litton cited by Local 313 did not
address implied obligations arising under a collective bargaining agreement, nor did it address
the parties' course of conduct in the context of construing the contractual language. Instead, the
case addresses the effect of the express contractual terms after expiration of the agreement, and
stands for the proposition that "an expired contract has by its own terms released all its parties
from their respective contractual obligations." Id. at 206.
The Third Circuit has held that "when a contract lapses but the parties to the contract
continue to act as if they are performing under a contract, the material terms of the prior contract
will survive intact unless either one of the parties clearly and manifestly indicates, through words
or through conduct, that it no longer wishes to continue to be bound thereby." Luden 's Inc. v.
Local Union No. 6 of Bakery, Confectionery, & Tobacco Workers' Int'! Union ofAm., 28 F.3d

347, 355-56 (3d Cir. 1994). Local 313 changed its course of conduct in June 2011, several
months prior to the expiration of the CBA, and subsequent negotiations for a new collective
bargaining agreement failed when the parties reached an impasse regarding whether to modify
the language specifically referencing Local 74. (D.I. 37, Ex. B). The parties expressly agreed
that the disputed language would remain in the 2011-2014 agreement unless and until the NLRB
ruled in favor of Local 313 and ordered the language stricken from the 2011-2014 agreement.
(D.I. 32, Ex. D at 94:1-12) In light of the parties' agreement to maintain the status quo until the

were not certified to address the plumbing needs of the location. (D.I. 30, Ex.Cat 9:12-10:20)
Association with Local 74 enabled Local 313 to meet the employer's requirements, and was
beneficial to Local 313 in that regard. (Id. at 20:9-18)
18

NLRB resolved the dispute, Local 313 has failed to demonstrate a clear indication that the parties
no longer wished to be bound by the CBA prior to the issuance of the NLRB' s decision.
D.

Motion to Strike and Motion for Leave to Supplement the Record

Having construed the language of the CBA, the court next addresses Local 74's motion to
strike and Local 313 's motion for leave to supplement the record, which are relevant to the scope
of the court's ruling on summary judgment. (D.I. 41; D.I. 42) By way of its motion to strike,
Local 74 asks the court to strike Local 313 's December 4, 2013 letter, as well as the attached
revised 2011-2014 collective bargaining agreement and a July 19, 2012 email from C&W's
counsel to Local 313 's counsel. (D.1. 41 at if 3) In response, Local 313 alleges that the modified
2011-2014 collective bargaining agreement is linked to the NLRB's November 19, 2013
decision, and the July 19, 2012 email was not produced in discovery due to the excusable neglect
of its counsel. (D.1. 42 at 2-3)
Pursuant to the discretion offered by Local Rule 7.1.2(a), 10 I recommend that the court
deny Local 74' s motion to strike and grant Local 313 's cross-motion to supplement the record as
they pertain to the modified 2011-2014 collective bargaining agreement, and grant the motion to
strike but deny the cross-motion to supplement the record as they pertain to the related
correspondence. Consideration of the modified 2011-2014 agreement is appropriate because
Local 74 set no clear boundaries on the time frame for which it seeks damages. (D.I. 1 at if 22)
("Since June 2011 and continuing through the present ... Drummond has directed Local 313 to
begin keeping a portion of the Local 74 working dues assessment ... "). Local 74 requests in its
opening summary judgment brief a "judgment reflecting the amount seized by IBEW 313 to

10

Local Rule 7.1.2(a) provides that, "[ e]xcept for the citation of subsequent authorities, no
additional papers shall be filed absent Court approval." The modified 2011-2014 collective
bargaining agreement and correspondence proffered by Local 313 are not subsequent authority
and, therefore, are admissible only to the extent permitted by the court.
19

date," and its motion to strike provides no greater clarity, stating only that "[t]he motions before
the Court concern monies seized by the defendant prior to the implementation of [the modified
2011-2014 collective bargaining agreement]." (D.1. 28 at 19; D.I. 41atif4) (emphasis in
original) Because of the open-ended nature of Local 74's request for relief, and the fact that
genuine issues of material fact exist regarding the modifications to the 2011-2014 collective
bargaining agreement following the NLRB's decision, 11 the court can only construe the terms of
the CBA and the undisputed facts surrounding that agreement as a matter of law. The factual
disputes pertaining to the modified 2011-2014 collective bargaining agreement are therefore
more appropriately reserved for the jury to resolve. In light of the foregoing, I recommend that
the court adopt Local 74's proposed construction of the CBA for the reasons previously
discussed, 12 but deny summary judgment to the extent that it applies to the modified 2011-2014
collective bargaining agreement.
I recommend that the court grant Local 74' s motion to strike and deny Local 313 's crossmotion to supplement the record as they pertain to the correspondence dated December 4, 2013
and July 19, 2012. Local 313 concedes that the July 19, 2012 email was previously available to
it and should have been produced during discovery, "but for excusable neglect on the part of
Defendant's counsel." (D.I. 42 at 3) However, Local 313 fails to show good cause in support of

11

Specifically, the parties appear to dispute the correct version and/or date of applicability of the
modified 2011-2014 collective bargaining agreement, (D.I. 41 at if 3) (" ... the alleged contract
appears to be a version that differs from the document produced by the defendant."), as well as
whether the modified 2011-2014 agreement conflicts with evidence that Local 74 employees
currently working under the CBA were grandfathered in, (D.I. 32, Ex. D at 92:5-22; 94:6-24;
D.I. 37, Ex.Cat 47: 10-20; D.I. 40, Ex. A)
12

Contrary to Local 313's contentions, the modifications made to the 2011-2014 collective
bargaining agreement reinforce the court's construction of the CBA. If the language
unambiguously conveyed a construction consistent with Local 313' s interpretation, the removal
oflanguage specifically referring to Local 74 would not have been necessary.
20

its excusable neglect argument, instead indicating that the omission was the result of "oversight,"
and the court therefore has no basis to permit the July 19, 2012 email's inclusion on the record.

See Pioneer Inv. Servs. Co. v. BrunswickAssocs. Ltd. P'ship, 507 U.S. 380, 392 (1993)
(observing that "inadvertence, ignorance of the rules, or mistakes construing the rules do not
usually constitute 'excusable' neglect"). Local 313 will not suffer prejudice as a result of the
email's exclusion because, in its own words, "the existence, origin and purpose of the July 19,
2012 email is already part of the summary judgment record." (D.I. 42 at 3, 8) I recommend that
the court also strike Local 313 's December 4, 2013 letter to this court due to its discussion of the
July 19, 2012 email.

E.

Exhaustion of Dispute Resolution Mechanisms

Local 313 alleges that Local 74's suit must be dismissed because Local 74 failed to first
exhaust the available dispute resolution mechanisms. (D.I. 37 at 18) Local 313 points out that
both Local 74 and Local 313 are members of the Building and Construction Trades, AFL-CIO,
and the AFL-CIO Constitution provides mandatory mechanisms for dispute resolution. (Id.) In
response, Local 74 alleges that the cases cited by Local 313 in support of its argument relate to
the preemptive authority of the NLRB or an employee's failure to take advantage of the
grievance procedure contained in the CBA, but do not require the exhaustion of all available
mechanisms for dispute resolution. (D.I. 38 at 11) Moreover, Local 74 alleges that nothing in
the contracts between Local 74 and Local 313 requires the parties to arbitrate, and the provision
of the AFL-CIO Constitution cited by Local 313 does not apply because the parties do not claim
the right to do work traditionally done by the other trade. (Id.)
The portions of the AFL-CIO Constitution cited by Local 313 do not support Local 313 's
position that Local 74 was required to pursue alternative dispute resolution mechanisms before

21

bringing suit in this court. Although sections 7 and 9 of the AFL-CIO Constitution outline a
procedure for mediating disputes among affiliates and subsequently holding a "full and fair
hearing before an Impartial Umpire" if the dispute is not resolved through mediation, nothing in
these provisions prohibits affiliated unions from seeking relief through the courts. (D.I. 6, Ex. 1
at Art. 20, §§ 7, 9)
Moreover, the case law cited by Local 313 is inapposite because the decisions turned on
the fact that collective bargaining agreements contained exclusive grievance and arbitration
procedures not present in the CBA currently at issue. Specifically, the Third Circuit's decision
in Wheeler v. Graco Trucking Corp. is inapplicable to the facts of the present case because the
collective bargaining agreement in Wheeler set forth "exclusive grievance and arbitration
procedures" not present in the CBA at issue in the instant matter. 985 F .2d 108, 112 (3d Cir.
1993); see also Clayton v. Int'! Union, UWA, 451 U.S. 679, 687 (1981) ("However, we decline
to impose a universal exhaustion requirement lest employees with meritorious § 301 claims be
forced to exhaust themselves and their resources by submitting their claims to potentially lengthy
internal union procedures that may not be adequate to redress their underlying grievances.");

Wallker v. Chrysler Corp., 601 F. Supp. 1358, 1361 (D. Del. 1985). For these reasons, Local
74's alleged failure to exhaust the available dispute resolution mechanisms does not bar it from
pursuing the instant action in this court.

IV.

CONCLUSION
For the foregoing reasons, I recommend that the court: (1) grant-in-part Local 74's

motion for summary judgment (D.I. 27); (2) deny Local 313's motion for summary judgment
(D.I. 36); (3) grant-in-part Local 74's motion to strike (D.I. 41); and (4) grant-in-part Local 313's
cross-motion for leave to supplement the summary judgment record (D.I. 42). Partial summary

22

judgment is warranted because material issues of fact remain as to the damages period and the
amount of damages to which Local 74 is entitled. The parties do not dispute that the relevant
damages period commenced in June 2011, when the practice of remitting the full amount of dues
to Local 74 ceased.

However, material issues of fact exist with regard to whether the

modification of the CBA in light of the NLRB decision terminated Local 74's entitlement to all
or a portion of the membership dues, and if so, when the modification took effect.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b). The failure of a party to object to legal conclusions may result in the loss
of the right to de novo review in the district court. See Henderson v. Carlson, 812 F.2d 874,
878-79 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006).
The parties are directed to the Court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available at
http://www.ded.uscourts.gov/court-info/local-rules-and-orders/general-orders.

Dated: Januaryc2t-2015
S MAGISTRATE JUDGE

23