Laborers Health & Welfare Trust Fund v. Diablo Landscape Inc.
Opinion of the Court
MEMORANDUM
Laborers Health and Welfare Trust Fund for Northern California, Laborers Vacation-Holiday Trust Fund for Northern California, Laborers Pension Trust Fund for Northern California, Laborers Training and Retraining Trust Fund for Northern California (the Trusts) appeal the district court’s determination on summary judgment that Diablo Landscape, Inc., is neither the alter ego nor the successor in interest to B.L. Cohen Landscape, Inc., (BLC). We affirm.
The Trusts argue that Barry Cohen’s deposition statement that “the union market was getting out-of-hand as far as pricing and being competitive” is evidence of anti-union animus. We have held that statements indicating a desire to avoid the high costs of union labor can be evidence of anti-union animus. See Haley & Haley, 880 F.2d at 1152. However, the evidence in this case makes it apparent that Diablo was not created nor BLC closed out of anti-union animus. Diablo was formed to compete in an entirely different market from that in which BLC competed, and the two simply did not even have the same (or similar) customer lists. Notably, the two actually coexisted for a number of years. See Nor-Cal, 48 F.3d at 1473. Also, the principals did not close BLC voluntarily; that was forced upon them by creditors. Moreover, the union was well aware of the existence and purpose of Diablo from the beginning, and never complained about it or asserted any right to preclude the arrangement. The district court was correct. (2) The Trusts then assert that Diablo is bound by the collective bargaining agreement because it is a successor employer. We disagree. On the undisputed facts,
In fine, because Diablo is neither bound as a successor employer nor as the alter ego of BLC, the district court properly granted summary judgment in its favor.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Both parties assured the district court that the facts were not in dispute, and it accepted that and ruled on that basis.
. We agree with the district court that the Trusts did not raise the successorship clause issue before it. Thus, we need not review the issue. See Int’l Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). Even were we to do so, we are satisfied that under the facts of this case the clause did not increase the union's rights, as its own lack of action indicates.
. Diablo requests attorney’s fees on appeal. However, our agreement with its position does not mean that we find the Trusts’ position frivolous or otherwise deserving of a fee award against them. See DeVoll v. Burdick Painting, Inc., 35 F.3d 408, 414 (9th Cir. 1994). We, therefore, deny fees.
Reference
- Full Case Name
- LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA Laborers Vacation-Holiday Trust Fund for Northern California Laborers Pension Trust Fund for Northern California Laborers Training and Retraining Trust Fund for Northern California v. DIABLO LANDSCAPE INC., f/k/a B.L. Cohen Landscape, Inc.
- Status
- Published