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,
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
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.
S. Kinzer, VORYS, SATER, SEYMOUR AND PEASE LLP, Columbus,
Ohio, for Appellants.
W. Buck, LITTLER MENDELSON, PC, Cleveland, Ohio, for Hunt
A. Kinsella, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Intervenor-Appellee.
S. Kinzer, Daniel J. Clark, Elizabeth B. Howard, VORYS,
SATER, SEYMOUR AND PEASE LLP, Columbus, Ohio, for Appellants.
W. Buck, Meredith C. Shoop, LITTLER MENDELSON, PC, Cleveland,
Ohio, for Hunt Construction Appellees.
A. Kinsella, Kevin P. Flanagan, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Intervenor-Appellee.
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
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.
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 ...