            Case: 13-13075    Date Filed: 02/04/2014   Page: 1 of 11


                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-13075
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 3:09-cv-01002-JBT

W.W. GAY, as Trustee of the Jacksonville
Plumbers & Pipefitters Local Union 234
Fringe Benefit Funds,
RONNY E. ANDREWS, as Trustee of
the Jacksonville Plumbers & Pipefitters
Local Union 234 Fringe Benefit Funds,
et al.,

                                                           Plaintiffs-Appellees,


                                    versus


BRENCORP, INC., a Georgia corporation,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (February 4, 2014)
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Before MARTIN, JORDAN and BLACK, Circuit Judges.

PER CURIAM:

       Brencorp, Inc., an industrial contracting company, appeals the district

court’s entry of judgment in favor of the trustees of the Jacksonville Plumbers and

Pipefitters Local Union 234 (the Union) based on Brencorp’s failure to make

contributions to the Union’s fringe benefit funds required by a collective

bargaining agreement (CBA). Brencorp argues the district court erred in deciding

that Brencorp was bound by the CBA because Kenneth Welchel, the employee

who signed the CBA on Brencorp’s behalf, was not authorized to do so. 1 In

addition, Brencorp argues the district court erred by finding that, regardless of

Welchel’s authority, Brencorp ratified his signing of the CBA through its conduct.

Upon review, we conclude the district court did not err and affirm.

                                  I.       BACKGROUND

       Brencorp’s negotiations with the Union began after Anheuser-Busch

contracted with Brencorp to install equipment at its Jacksonville, Florida, facility
       1
          This case actually involves two CBAs. Welchel signed the first on August 3, 2007, and
it expired just a few weeks later on August 31, 2007. Welchel then signed the second on
September 1, 2007, and it covered the three-year period from September 1, 2007, to August 31,
2010. Because this is the period during which Brencorp failed to make the contributions at issue,
the Union’s claim turns on Welchel’s authority to sign only the second CBA. However, because
the CBAs were signed so close in time, the circumstances surrounding the signing of both CBAs
inform our analysis of the scope of Welchel’s authority. See, e.g., Restatement (Third) of
Agency § 2.02 cmt. e (“Interactions between principal and agent do not occur in a vacuum. Prior
dealings between them are relevant to the reasonableness of the agent’s understanding of the
principal’s manifestation.”); Restatement (Second) of Agency § 34 cmt. b (“If an agent has been
previously employed, ordinarily he is entitled to assume that he is authorized to continue to do
what he has been doing with the knowledge of the principal without objection from him.”)

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beginning on August 6, 2007.2 On August 1, 2007, Ted Brennan, Brencorp’s

president and sole executive officer, sent a letter to the Union proposing to staff the

project with union labor and pay wages and benefits according to the Union’s

CBA. However, Brennan proposed that the agreement would self-terminate upon

the project’s completion, whereas the Union preferred Brencorp to agree to the

CBA and its standard three-year duration. Accordingly, Jimmy Johnson, the

Union’s business manager, responded to Brennan’s letter by sending him two

copies of the CBA and asking him to sign and return one of them. Brennan

received this response on August 3, 2007, three days before the project’s start date.

Later that day, Brennan and Johnson had a 41-minute telephone conversation

during which they reiterated their positions on whether they would enter into a

one-job agreement or the standard CBA.

      Brencorp assigned Welchel to the project. Welchel was a member of the

Plumbers, Pipefitters, and Service Technicians Local Union 72 based in Atlanta,

Georgia who worked with Brencorp as a project supervisor. At trial, Welchel

testified to a number of facts surrounding his signing of the CBAs.

      Welchel stated that he worked on the project for three-to-four weeks at

Brencorp’s offices in Cartersville, Georgia, before traveling to Jacksonville to

supervise the project and meet with Union representatives. At the time he traveled


      2
          We refer to the equipment installation as “the project.”

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to Jacksonville, Welchel believed Brencorp and the Union had already reached an

agreement, but Johnson told him that no agreement had been signed and that,

despite Brencorp’s preference for a one-job agreement, the Union would not

provide labor if Brencorp did not sign a CBA. Welchel initially told Johnson the

issue was “out of [his] hands” and that he did not come to Jacksonville to sign an

agreement. Welschel testified that he subsequently spoke to Brennan about the

need to sign a CBA, but Brennan “kept putting it off” until the project was soon to

begin. In the following exchange, Welchel described what happened next:

      Q.    And what happened when it came down to the wire and the job
            was supposed to start?

      A.    Well, I’ve had a couple of conversations with Mr. Brennan
            about that, you know, and I told him, I said, you know, if he
            doesn’t sign with [the Union], then I’m not going to run the job
            with nonunion people. And—you know. Well, he knew that
            before I left Cartersville.

            And when it came right down to when we had to actually put
            manpower on site, and I had talked to Mr. Brennan on that
            particular day, I believe it was, and, you know, I asked him, you
            know, “What are we going to do? I can’t hire anybody because
            we don’t have an agreement with them.”

            And I believe his comments were, “Well, I’m not going to sign
            it. If you want to sign it, go down there and sign it.” And so I
            did.

      Q.    Mr. Welchel, did you believe that Mr. Brennan had authorized
            you to go sign the agreement?




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      A.     Yeah. I would not have went down there on my own if I hadn’t
             of [sic] communicated with him about it. I would have just
             came back to Cartersville.

      Brennan’s testimony at trial concerning this exchange was substantially

similar. He testified, “I told Mr. Welchel that I’m not signing an agreement. You

do it if you want.” He then elaborated, testifying, “I said, ‘I’m not signing the

agreement. You go fucking sign it if you want to.’” Contrary to Welchel’s

testimony, Brennan testified that because he only needed three workers for the first

month of the project, “[t]here was no press on time.”

      Welchel signed the CBA on August 3, 2007. However, the CBA’s three-

year term was set to expire only 28 days after it was signed and 25 days after the

project began. Consequently, the Union asked Brencorp to sign a second CBA

shortly after Welchel had signed the first.

      Welchel gave conflicting testimony regarding the signing of the second

CBA. At trial, he first testified that he did not recall having a discussion with

Brennan about signing the second CBA because “[i]t didn’t really seem necessary”

given he had just signed the first. Welchel stated, “we had signed the [first]

agreement, and that time period or that time frame of that particular agreement had

run out and for us to continue working down there, we had to sign the updated

agreement.” However, at his deposition Welchel stated that he told Brennan that

the second CBA “[had] to be signed if we’re going to keep these people out here”


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and that Brennan responded by telling him something to the effect of “sign it if you

want to.” At trial, when counsel for the Union read this deposition testimony to

him and asked if it refreshed his recollection, Welchel said, “Yes, it does,

absolutely.” He then testified that he had shown Brennan the agreement and that

Brennan “kind of tossed it across the room there.” Brennan agreed that he had

thrown a CBA across the room but stated that he did not recall any conversations

about the second CBA. He could only recall telling Welchel to sign the first CBA

if he wanted to sign it and denied ever seeing that the CBAs had been signed.

Brennan added that he first learned Welchel had signed the CBAs on Brencorp’s

behalf after the project had been completed.

      Brencorp completed the project in June 2008 with Union labor and made all

the benefit-fund contributions the CBA required for that labor. Brencorp later

worked on other jobs covered by the second CBA without making the required

contributions, prompting the Union to commence this action.

      The parties consented to a bench trial before a magistrate judge. Following

the bench trial, the magistrate judge made two credibility determinations. First,

finding Welchel’s testimony more credible than Brennan’s, the magistrate judge

determined that Brennan did tell Welchel to sign the second CBA if he wanted to

sign it. The magistrate judge noted an inconsistency between Brennan’s deposition




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and trial testimony 3 and observed that Brennan “testified merely that he did not

recall having any discussions with Welchel about Welchel signing the Second

CBA” without denying that he told Welchel he could sign it. Second, the

magistrate judge found that Brennan was aware Welchel signed the two CBAs at

the time he signed them or shortly thereafter. The magistrate judge reiterated that

he found Welchel’s testimony more credible than Brennan’s and also found

Welchel’s testimony more consistent with the surrounding circumstances. If he

did not know that Welchel had signed the CBA, Brennan would have had no other

explanation for the Union’s sudden provision of labor after having previously

insisted Brencorp sign the standard CBA. The magistrate judge concluded that

Brennan was at least willfully blind to the fact that Welchel signed the CBAs.

       Having made these factual findings, the magistrate judge then reached the

following legal conclusions: (a) Welchel had actual authority to sign the first CBA,

(b) Welchel had actual authority to sign the second CBA, and (c) Brencorp ratified

Welchel’s signing of the CBAs. On appeal, Brencorp argues the magistrate judge

erred as to each of these conclusions.




       3
           Specifically, Brennan testified at his deposition that he did not recall having any
conversation about signing the first CBA with Welchel but, at trial, admitted that he told Welchel
to “go . . . sign it if you want to.”

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                             II.   STANDARD OF REVIEW

       “After a bench trial, we review the district court’s conclusions of law de

novo and the district court’s factual findings for clear error.” Proudfoot Consulting

Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). “A factual finding is clearly

erroneous when although there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been

committed.” Id. (internal quotation marks omitted).

       “If the district court’s account of the evidence is plausible in light of
       the record viewed in its entirety, the court of appeals may not reverse
       it even though convinced that had it been sitting as the trier of fact, it
       would have weighed the evidence differently. Where there are two
       permissible views of the evidence, the factfinder’s choice between
       them cannot be clearly erroneous.”

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).

                                   III.    DISCUSSION

       In arguing against the magistrate judge’s legal conclusion, Brencorp

implicitly asks us to reject several of his key factual determinations. However, we

find no clear error in any of the magistrate judge’s factual findings,4 and, having

thus adopted them, we agree with the resulting legal conclusions.

       The magistrate judge concluded that Brencorp authorized Welchel to sign

the second CBA because Brennan’s “‘written or spoken words or other
       4
         The proper interpretation of the evidence is a question of fact, see United States v.
Tampas, 493 F.3d 1291, 1298 (11th Cir. 2007), as is the determination of the reasonableness of
an agent’s interpretation of the principal’s manifestations, see Restatement (Third) of Agency
§ 2.02 cmt. c.

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conduct . . . , reasonably interpreted, cause[d] [Welchel] to believe that [Brennan]

desire[d] him so to act.’” Ramos-Barrientos v. Bland, 661 F.3d 587, 600 (11th Cir.

2011) (quoting Restatement (Second) of Agency § 26). The magistrate judge

based this conclusion primarily on its factual finding that Brennan told Welchel

something to the effect of “sign it if you want to” and also cited a number of

surrounding facts that made Welchel’s belief reasonable under the circumstances.

Specifically, the magistrate judge noted that Brennan made a similar statement a

few weeks earlier regarding the first CBA, that the Union would pull its workers

off of the project if the CBA were not signed, and that there was no evidence

Brencorp had any arrangements to procure an alternative source of labor.

      Brencorp asks us to interpret the evidence differently, arguing, inter alia,

that Brennan never threw the first CBA across the room, Brennan never told

Welchel to sign the second CBA, and Brennan was unaware Welchel signed the

CBAs. However, Brencorp fails to demonstrate any clear error that would direct

us to reject the magistrate judge’s contrary factual findings. Brencorp suggests

Welchel was confused during his testimony, but the magistrate judge did not find

his testimony confused or otherwise inaccurate. To the contrary, the magistrate

judge explicitly found Welchel’s testimony more credible than Brennan’s.

Similarly, whereas Brencorp characterizes the magistrate judge’s finding that

Brennan knew Welchel signed the CBAs as a baseless assumption, Welchel’s


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testimony at trial that he showed Brennan the signed second CBA and Brennen

threw it across the room shows that this finding was not clearly erroneous. See

Anderson, 470 U.S. at 573-74.

      Moreover, we agree with the magistrate judge that even if Brennan did not

know Welchel signed the CBAs, his willful blindness was tantamount to

knowledge. “Under the doctrine of willful blindness or deliberate

ignorance, . . . knowledge can be imputed to a party who knows of a high

probability of [a fact in question] and purposely contrives to avoid learning of it.”

Williams v. Obstfeld, 314 F.3d 1270, 1278 (11th Cir. 2002). Given that Brencorp

and the Union were in the midst of contentious negotiations about whether

Brencorp would sign a CBA, that the Union expressed great reluctance to provide

labor if Brencorp did not sign the CBA, that Brennan had told Welchel

(sarcastically or otherwise) to sign the CBA, that the Union then provided labor

without any further negotiation, and that Brennan never asked either Welchel or

the Union what had happened to resolve the CBA issue, Brennan’s purported

failure to learn that the CBA had been signed on Brencorp’s behalf amounted to

willful blindness. Thus, even if Brennan did not actually know Welchel signed the

CBAs, the magistrate judge did not err in imputing such knowledge to him under a

theory of willful blindness.




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       Accepting the magistrate judge’s factual findings, we agree with the

conclusion that Brennan authorized Welchel to sign the second CBA. Brennan

expressly told Welchel to sign it, just as he had done a few weeks earlier with an

identical CBA, 5 and Welchel’s interpretation of Brennan’s instructions was

colored by his knowledge that the Union was unlikely to provide labor for the

project if the CBA were not signed. Under these circumstances, Brennan’s

statement was sufficient to cause Welchel to reasonably believe Brennan wanted

him to sign the CBAs, and Welchel was therefore authorized to do so. 6

                                   IV.    CONCLUSION

       In light of the foregoing, we hold that the magistrate judge’s factual findings

were not clearly erroneous, and, accepting those findings, we agree with the

magistrate judge’s conclusion that Welchel was authorized to bind Brencorp to the

second CBA.

       AFFIRMED.




       5
          Brencorp makes much of the fact that, when telling Welchel he could sign the first
CBA, Brennan used profanity. The magistrate judge did not interpret Brennan’s use of profanity
as an indication that he did not actually mean what he said, nor does Brennan’s use of profanity
render it implausible that he intended Welchel to sign the CBA. The magistrate judge’s finding
regarding Brenan’s intent and the reasonableness of the conclusion Welchel drew from it is
therefore not clearly erroneous.
       6
         Having reached this conclusion, we have no need to decide whether Brennan ratified the
signing of the second CBA through his conduct.


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