Trustees of the Operating Engineers Pension Trust v. Smith-Emery Company, a California corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUSTEES OF THE OPERATING
ENGINEERS PENSION TRUST;
TRUSTEES OF THE OPERATING
ENGINEERS HEALTH AND WELFARE
FUND; TRUSTEES OF THE
OPERATING ENGINEERS VACATION-
HOLIDAY SAVINGS TRUST;
TRUSTEES OF THE OPERATING
ENGINEERS TRAINING TRUST,
Plaintiffs - Appellants,
v.
SMITH-EMERY COMPANY, a
California corporation,
Defendant - Appellee.
No. 13-56708
D.C. No. 2:09-cv-01476-CAS-
VBK
MEMORANDUM*
TRUSTEES OF THE OPERATING
ENGINEERS PENSION TRUST;
TRUSTEES OF THE OPERATING
ENGINEERS HEALTH AND WELFARE
FUND; TRUSTEES OF THE
OPERATING ENGINEERS VACATION-
HOLIDAY SAVINGS TRUST;
TRUSTEES OF THE OPERATING
No. 13-56830
D.C. No. 2:09-cv-01476-CAS-VBK
FILED
DEC 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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ENGINEERS TRAINING TRUST,
Plaintiffs - Appellees,
v.
SMITH-EMERY COMPANY, a
California corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted November 4, 2015
UCLA Law School, Los Angeles, Caliornia
Before: SCHROEDER and FRIEDLAND, Circuit Judges and CHHABRIA,**
District Judge.
This appeal concerns a longstanding dispute over whether or not a collective
bargaining agreement (“CBA”) covered post-installed anchor bolt testing and
inspection work. Trustees of the Operating Engineers Pension Trust, Trustees of
the Operating Engineers Health and Welfare Fund, Trustees of the Operating
Engineers Vacation-Holiday Savings Trust, and Trustees of the Operating
Engineers Training Trust (collectively “Trustees”) appeal the district court’s
** The Honorable Vince G. Chhabria, United States District Judge for
the Northern District of California, sitting by designation.
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judgment for Smith-Emery Company (“SEC”) following a bench trial on whether
the questioned work was covered.
Prior to trial, in its opposition to Trustees’ motion for summary judgment,
SEC argued that the CBA covered only work that required a building/construction
inspector’s license. In its reply, Trustees argued that SEC was precluded from
litigating the licensing issue because an arbitrator had already decided the issue of
whether the work was covered. The district court ruled that collateral estoppel did
not bar SEC’s contention that the CBA applied only to work requiring a license.
The district court did not directly address whether the post-installed anchor bolt
testing and inspection issue, which is a somewhat different issue than the licensing
issue, had been decided by the arbitrator. At trial, Trustees unsuccessfully argued
that the arbitrator’s decision precluded SEC from litigating the issue of post-
installed anchor bolt work.
Trustees contend in this appeal that SEC should have been precluded from
litigating the issue of post-installed anchor bolt work because the issue had
previously been decided against SEC by an arbitrator. The arbitrator found that
Appendix B, describing covered work, was part of the CBA and that it covered
“bolt testing inspection.” SEC had contended that Appendix B was not part of the
CBA.
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The district court noted that the arbitration award itself did not expressly
differentiate between pre- and post-installed anchor work, so the court concluded
the award was ambiguous as to the proper scope of the CBA. The district court,
therefore, ruled that the arbitrator did not decide the issue of post-installed anchor
bolt testing and inspection. On the basis of the trial testimony, the district court
determined that pre- and post-installed anchor work should be considered
separately for purposes of the CBA.
The record before us indicates, however, that at the time of arbitration, the
only matter in dispute was post-installed work. The parties apparently never
disputed that pre-installed anchor bolt inspection was part of the CBA. The
transcripts from the arbitration proceeding reflect that the issue, with respect to
Appendix B, was post-installed anchor bolt testing and inspection. The president
of SEC described the anchor bolt work as testing bolts “installed after concrete is
poured.” We therefore conclude that the arbitrator decided that post-installed work
was covered work when he found Appendix B to be a part of the CBA.
At oral argument, SEC attempted to distinguish, for the first time, anchor
bolt testing from anchor bolt inspection, and to argue that the arbitrator’s finding
that the CBA covered “bolt testing inspection” included only inspection work and
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not testing. SEC, however, has never raised such a distinction in any prior
proceeding. We decline to consider it.
Since we conclude that the arbitrator’s decision that Appendix B, covering
post-installed testing and inspection, was part of the CBA, the district court should
have given preclusive effect to the arbitration proceeding.
SEC has cross-appealed, seeking an award of attorneys’ fees for itself and a
reduction of fees awarded to Trustees. In light of our decision, SEC is not entitled
to fees. Trustees may be entitled to a larger award because the district court
awarded fees based on the ratio of Trustees’ successful claims to unsuccessful.
Accordingly, the district court’s judgment is REVERSED, and the matter
REMANDED for further proceedings.
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