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Orrand v. Hunt Construction Group, Inc.

United States Court of Appeals, Sixth Circuit

March 30, 2017

Raymond Orrand, Administrator of the Ohio Operating Engineers Health and Welfare Plan, Ohio Operating Engineers Pension Fund, Ohio Operating Engineers Apprenticeship Fund, Ohio Operating Engineers Education and Safety Fund; Trustees of the Ohio Operating Engineers Health and Welfare Plan; Ohio Operating Engineers Pension Fund; Ohio Operating Engineers Apprenticeship Fund, Ohio Operating Engineers Education and Safety Fund, Plaintiffs-Appellants,
v.
Hunt Construction Group, Inc.; Donley's Inc.; Cleveland Concrete Construction, Inc. dba Cleveland Cement Contractors, Inc.; B & B Wrecking & Excavating, Inc.; Precision Environmental Company, Defendants-Appellees, National Labor Relations Board, Intervenor-Appellee.

          Argued: January 26, 2017

         Appeal from the United States District Court for the Southern District of Ohio at Columbus. Nos. 2:13-cv-00481; 2:13-cv-00489; 2:13-cv-00556; 2:13-cv-00864; 2:13-cv-00900-James L. Graham, District Judge.

         ARGUED:

          Allen S. Kinzer, VORYS, SATER, SEYMOUR AND PEASE LLP, Columbus, Ohio, for Appellants.

          Frank W. Buck, LITTLER MENDELSON, PC, Cleveland, Ohio, for Hunt Construction Appellees.

          Martha A. Kinsella, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Intervenor-Appellee.

         ON BRIEF:

          Allen S. Kinzer, Daniel J. Clark, Elizabeth B. Howard, VORYS, SATER, SEYMOUR AND PEASE LLP, Columbus, Ohio, for Appellants.

          Frank W. Buck, Meredith C. Shoop, LITTLER MENDELSON, PC, Cleveland, Ohio, for Hunt Construction Appellees.

          Martha A. Kinsella, Kevin P. Flanagan, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Intervenor-Appellee.

          Basil W. Mangano, Ryan K. Hymore, MANGANO LAW OFFICES CO., L.P.A., Cleveland, Ohio, Terrance G. Reed, LANKFORD & REED P.L.L.C., Alexandria, Virginia, for Amici Curiae.

          Before: GUY, CLAY, and GRIFFIN, Circuit Judges

          OPINION

          RALPH B. GUY, JR., CIRCUIT JUDGE.

          Plaintiffs in this Employee Retirement Income Security Act (ERISA) contribution action appeal the district court's order granting defendants summary judgment. We hold that the National Labor Relations Board's jurisdictional award precludes plaintiffs' ERISA claims, and therefore affirm.

         I.

         Defendant employers are signatories to collective bargaining agreements ("CBAs") with plaintiff funds' union, Operating Engineers ("Operators"). The CBAs provided that "the Employer shall employ Operating Engineers for the erection, operation, assembly and disassembly, and maintenance and repair of . . . Forklifts, Skidsteers . . . [which] shall be the work of the Operating Engineers (only applies to in-house crew), and within the jurisdiction as assigned to the Union by the American Federation of Labor." The CBAs further stated, "[i]f the Employer assigns any piece of equipment to someone other than the Operating Engineer, the Employer's penalty shall be to pay the first qualified registered applicant the applicable wages and fringe benefits from the first day of violation." Defendants' CBA with another union, Laborers International ("Laborers"), provided that "operation of ...


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