San Pedro Fishermen's Welfare Trust Fund Local 33 v. Carmen Di Bernardo, 664 F.2d 1344 (9th Cir. 1982). · Go Syfert
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San Pedro Fishermen's Welfare Trust Fund Local 33 v. Carmen Di Bernardo, 664 F.2d 1344 (9th Cir. 1982). Cases Citing This Book View Copy Cite
51 citation events (4 in the last 25 years) across 14 distinct courts.
Strongest positive: Board of Trustees of the Watsonville Frozen Food Welfare Trust Fund v. California Cooperative Creamery (ca9, 1989-06-21)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Board of Trustees of the Watsonville Frozen Food Welfare Trust Fund v. California Cooperative Creamery
9th Cir. · 1989 · confidence medium
The Trust Fund relies on this court's statement in San Pedro Fishermen’s Welfare Trust Fund Local 33 v. Di Bernardo, 664 F.2d 1344 (9th Cir.1982), that "contract interpretation [must] be confined to the written terms of the welfare trust fund agreement." Id. at 1345.
discussed Cited as authority (rule) The Board Of Trustees Of The Watsonville Frozen Food Welfare Trust Fund v. California Cooperative Creamery
9th Cir. · 1989 · confidence medium
The Trust Fund relies on this court's statement in San Pedro Fishermen's Welfare Trust Fund Local 33 v. Di Bernardo, 664 F.2d 1344 (9th Cir.1982), that "contract interpretation [must] be confined to the written terms of the welfare trust fund agreement." Id. at 1345.
examined Cited as authority (rule) Winton Kemmis v. James P. McGoldrick Individually and Doing Business as James P. McGoldrick Consulting Engineers (3×)
9th Cir. · 1983 · confidence medium
Di Bernardo, 664 F.2d at 1345.
discussed Cited "see" Operating Engineers Pension Trust v. A-C Company
9th Cir. · 1988 · signal: see · confidence high
See id. (citing Kemmis I, 706 F.2d 993, 997-98 (9th Cir.1983), and San Pedro Fishermen's Welfare Trust Fund v. DiBernardo, 664 F.2d 1344 , 1346 (9th Cir.1982)). 24 Because we hold that the Trusts are the prevailing party, on remand they are entitled to all the relief mandated under section 1132(g)(2). 10 Under subsection (A), they should be awarded the full amount of unpaid contributions under subsection (B), they are entitled to interest on this amount.
cited Cited "see" Operating Engineers Pension Trust v. A-C Co.
9th Cir. · 1988 · signal: see · confidence high
See id. (citing Kemmis I, 706 F.2d 993, 997-98 (9th Cir.1983), and San Pedro Fishermen’s Welfare Trust Fund v. DiBernardo, 664 F.2d 1344 , 1346 (9th Cir.1982)).
discussed Cited "see" Seafood Workers Health Fund Union Trustees v. Seafood Workers Health Fund Management Trustees
D. Mass. · 1983 · signal: see · confidence high
See San Pedro Fishermens’ Welfare Trust Fund Local 33 v. DiBernardo, 664 F.2d 1344 , 1345 (9th Cir.1982) (“The policy behind § 302(c)(5) requires that contract interpretation be confined to the written terms of the welfare trust fund agreement.”)
cited Cited "see" John C. Maxwell v. Lucky Construction Company, Inc.
9th Cir. · 1983 · signal: accord · confidence high
Accord, San Pedro Fishermen’s Welfare Trust Fund Local 33 v. Di Bernardo, 664 F.2d 1344 , 1345 (9th Cir.1982).
discussed Cited "see" Lewart v. Woodhull Care Center Associates (2×)
S.D.N.Y. · 1982 · signal: see · confidence high
See San Pedro Fishermen’s Welfare Trust Fund Local 33 v. Di Bernardo, 664 F.2d 1344 , 1346 (9th Cir.1982).
cited Cited "see, e.g." Nachwalter v. Christie
S.D. Fla. · 1985 · signal: see, e.g. · confidence low
See, e.g., San Pedro Fishermen’s Welfare Fund v. DiBernardo, 664 F.2d 1344 , 1345 (9th Cir.1982).
discussed Cited "see, e.g." Joseph O'hare v. General Marine Transport Corp.
2d Cir. · 1984 · signal: see also · confidence low
See also San Pedro Fishermen's Welfare Trust Fund Local 33 v. Di Bernardo, 664 F.2d 1344 , 1346 (9th Cir.1982); cf. Bugher v. Consolidated X-Ray Service Corp., 705 F.2d 1426 (5th Cir.1983) (applying the 1974 ERISA attorneys' fees provision to a suit initiated pre-ERISA), cert. denied, --- U.S. ----, 104 S.Ct. 2391 , 81 L.Ed.2d 348 (1984).
discussed Cited "see, e.g." O'Hare v. General Marine Transport Corp.
2d Cir. · 1984 · signal: see also · confidence low
See also San Pedro Fishermen’s Welfare Trust Fund Local 33 v. Di Bernardo, 664 F.2d 1344 , 1346 (9th Cir. 1982); cf. Bugher v. Consolidated X-Ray Service Corp., 705 F.2d 1426 (5th Cir.1983) (applying the 1974 ERISA attorneys’ fees provision to a suit initiated pre-ERISA), cert. denied, — U.S.-, 104 S.Ct. 2391 , 81 L.Ed.2d 348 (1984).
Retrieving the full opinion text from the archive…
San Pedro Fishermen's Welfare Trust Fund Local 33, Cross-Appellant
v.
Carmen Di Bernardo Frank Colonna Carmen Di Bernardo and Frank Colonna D/B/A the Santa Maria James Bunn, D/B/A the Donna B. The Donna B. A California Corporation, Cross-Appellees
80-5158.
Court of Appeals for the Ninth Circuit.
Jan 4, 1982.
664 F.2d 1344
Published

664 F.2d 1344

109 L.R.R.M. (BNA) 2383, 92 Lab.Cas. P 13,171,
3 Employee Benefits Ca 1784

SAN PEDRO FISHERMEN'S WELFARE TRUST FUND LOCAL 33,
Plaintiff-Appellee, Cross-Appellant,
v.
Carmen DI BERNARDO; Frank Colonna; Carmen Di Bernardo and
Frank Colonna d/b/a the Santa Maria; James Bunn, d/b/a the
Donna B.; the Donna B. a California Corporation,
Defendant-Appellants, Cross-Appellees.

Nos. 80-5158, 80-5168.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Oct. 8, 1981.
Decided Jan. 4, 1982.

Ronald Dean, Pacific Palisades, Cal., for San Pedro Fishermen's Welfare Trust Fund Local 33.

Thomas S. Kerrigan, McLaughlin & Irvin, Los Angeles, Cal., for Carmen Di Bernardo, et al.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, WALLACE and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

[*~1344]1

San Pedro Fishermen's Welfare Trust Fund Local 33 brought this action to enforce payment of trust fund contributions pursuant to a collective bargaining agreement. The district court granted the Trust Fund's motion for summary judgment and denied its motion for attorney's fees. We affirm the granting of summary judgment but the 1980 amendments to ERISA § 502(g), 29 U.S.C. § 1132(g) (1976), require a reversal of the denial of attorney's fees. We remand to the district court for a proper determination of attorney's fees.

I. Facts

2

San Pedro Fishermen's Welfare Trust Fund Local 33 is a third party beneficiary of a collective bargaining agreement (master agreement) between Di Bernardo et al. (employers) and Fishermen & Allied Workers' Union, Local 33. The master agreement was modified by a 1978 strike settlement agreement. The issue presented is whether employers must make health and welfare benefit contributions for striking employees. The written terms of the agreements are not in dispute. The parties dispute the interpretation of those agreements.

3

Di Bernardo et al. contend that (1) the master agreement did not require health and welfare benefit contributions for striking employees, and (2) even assuming the master agreement so provided, that it was effectively modified by the strike settlement agreement and by oral statements made during strike negotiations. The trial court held that the master agreement mandated such payments[1] and that subsequent agreements did not alter that obligation.

II. Summary Judgment

4

Section 302(c) of the Labor Management Relations Act, 29 U.S.C. § 186 (1976 & Supp. II 1978), permits employer contributions to welfare trust funds under rigid safeguards. Section 302(c)(5) requires that the detailed basis on which such payments are made be set forth in writing.[2] It has been held (1) that oral modifications of a written welfare trust fund agreement specifying payments are invalid and contrary to public policy, Lewis v. Seanor Coal Co., 382 F.2d 437, 443-44 (3d Cir. 1967), cert. denied, 390 U.S. 947, 88 S.Ct. 1035, 19 L.Ed.2d 1137 (1968); and (2) that a written welfare trust fund agreement supersedes prior oral understandings as well as subsequent modifications, Boyle v. North Atlantic Coal Corp., 331 F.Supp. 1107, 1108 (W.D.Pa., 1971). The policy behind § 302(c)(5) requires that contract interpretation be confined to the written terms of the welfare trust fund agreement. See generally Thurber v. Western Confer. of Teamsters Pension Plan, 542 F.2d 1106, 1108 (9th Cir. 1976). Oral statements regarding the meaning of a written trust fund agreement are difficult to prove and judicial recognition of such oral statements may invite collusion and controversy to the detriment of the beneficiaries.

5

The district court properly entered the summary judgment order as (1) the strike settlement agreement did not alter the master agreement on this subject; and (2) no oral modifications will be recognized.III. Attorney's Fees

6

This action, involving a multiemployer plan, was brought under § 502(g) of ERISA, 29 U.S.C. § 1132 (1976). At the time the action was brought the award of attorney's fees was discretionary. However the 1980 amendments to section 502(g) now make the award of attorney's fees mandatory in such cases.[3] We must apply the law in effect at the time we render our decision. See Bradley v. School Board of Richmond, 416 U.S. 696, 711-716, 94 S.Ct. 2006, 2016-19, 40 L.Ed.2d 476 (1974).[4] Section 502(g)(2), as amended, is applicable and requires that attorney's fees be awarded. Central States v. Alco Express Co., 522 F.Supp. 919 (E.D.Mich.1981). The order denying the Trust Fund's motion for attorney's fees is reversed and the case remanded for a determination of the amount of attorney's fees to be awarded.

[*~1345]7

Affirmed in part, reversed in part and remanded.

1

While the master agreement did not specifically refer to this situation, the trial court held that, a clear reading of its terms leads to but one conclusion-that contributions are required. We agree

2

Section 302 of the Labor Management Relations Act of 1947, 29 U.S.C. § 186 (1976 & Supp. II 1978), pursuant to which the pension fund was established, provides in pertinent part:

(a) It shall be unlawful for any employer or association of employers * * * to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value-

(1) to any representative of any of his employees who are employed in an industry affecting commerce; ...

(c) The provisions of this section shall not be applicable * * * (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents * * *: Provided, That * * * (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer * * *.

3

ERISA Amendments of 1980, Pub.L. No. 96-364, § 306(b)(2), 94 Stat. 1295 (amending 29 U.S.C. § 1132(g) (1976))

4

This principal applies unless such application would work a manifest injustice or there is statutory direction or legislative history to the contrary. 416 U.S. at 711-721, 94 S.Ct. at 2016-21. No such special circumstances exist here