                                                               FILED
               UNITED STATES COURT OF APPEALS                  MAR 23 2016

                                                            MOLLY C. DWYER, CLERK
                       FOR THE NINTH CIRCUIT                 U.S. COURT OF APPEALS




TRUSTEES OF THE OPERATING            No. 13-56708
ENGINEERS PENSION TRUST;
TRUSTEES OF THE OPERATING            D.C. No. 2:09-cv-01476-CAS-
ENGINEERS HEALTH AND WELFARE         VBK
FUND; TRUSTEES OF THE                Central District of California,
OPERATING ENGINEERS VACATION-        Los Angeles
HOLIDAY SAVINGS TRUST;
TRUSTEES OF THE OPERATING
ENGINEERS TRAINING TRUST,            ORDER

         Plaintiffs - Appellants,

v.

SMITH-EMERY COMPANY, a
California corporation,

         Defendant - Appellee.



TRUSTEES OF THE OPERATING            No. 13-56830
ENGINEERS PENSION TRUST;
TRUSTEES OF THE OPERATING            D .C. No. 2:09-cv-01476-CAS-VBK
ENGINEERS HEALTH AND WELFARE         Central District of California,
FUND; TRUSTEES OF THE                Los Angeles
OPERATING ENGINEERS VACATION-
HOLIDAY SAVINGS TRUST;
TRUSTEES OF THE OPERATING
ENGINEERS TRAINING TRUST,

         Plaintiffs - Appellees,

v.
SMITH-EMERY COMPANY, a
California corporation,

              Defendant - Appellant.


Before: SCHROEDER and FRIEDLAND, Circuit Judges and CHHABRIA,*
District Judge.

      The memorandum disposition filed December 16, 2015 is hereby amended.

With the filing of the Amended Memorandum Disposition, the panel has voted to

deny Defendant, Appellee and Cross-Appellant’s petition for rehearing. No further

petitions for rehearing or rehearing en banc may be filed.




      *
            The Honorable Vince G. Chhabria, United States District Judge for
the Northern District of California, sitting by designation.

                                          2
                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 23 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TRUSTEES OF THE OPERATING                        No. 13-56708
ENGINEERS PENSION TRUST;
TRUSTEES OF THE OPERATING                        D.C. No. 2:09-cv-01476-CAS-
ENGINEERS HEALTH AND WELFARE                     VBK
FUND; TRUSTEES OF THE
OPERATING ENGINEERS VACATION-
HOLIDAY SAVINGS TRUST;                           AMENDED MEMORANDUM*
TRUSTEES OF THE OPERATING
ENGINEERS TRAINING TRUST,

              Plaintiffs - Appellants,

 v.

SMITH-EMERY COMPANY, a
California corporation,

              Defendant - Appellee.



TRUSTEES OF THE OPERATING                        No. 13-56830
ENGINEERS PENSION TRUST;
TRUSTEES OF THE OPERATING                        D.C. No. 2:09-cv-01476-CAS-VBK
ENGINEERS HEALTH AND WELFARE
FUND; TRUSTEES OF THE
OPERATING ENGINEERS VACATION-
HOLIDAY SAVINGS TRUST;
TRUSTEES OF THE OPERATING

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ENGINEERS TRAINING TRUST,

              Plaintiffs - Appellees,

 v.

SMITH-EMERY COMPANY, a
California corporation,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                     Argued and Submitted November 4, 2015
                                UC Los Angeles

Before: SCHROEDER and FRIEDLAND, Circuit Judges and CHHABRIA,**
District Judge.

      This appeal concerns a longstanding dispute over whether or not a collective

bargaining agreement (“CBA”) covered post-installed anchor bolt testing and

inspection work. Trustees of the Operating Engineers Pension Trust, Trustees of

the Operating Engineers Health and Welfare Fund, Trustees of the Operating

Engineers Vacation-Holiday Savings Trust, and Trustees of the Operating

Engineers Training Trust (collectively “Trustees”) appeal the district court’s


       **
            The Honorable Vince G. Chhabria, United States District Judge for
the Northern District of California, sitting by designation.

                                          2
judgment for Smith-Emery Company (“SEC”) following a bench trial on whether

the questioned work was covered.

      Trustees contend in this appeal that SEC should have been precluded from

litigating the issue of post-installed anchor bolt work because the issue had

previously been decided against SEC by an arbitrator. The arbitrator held that

“bolt testing inspection work” was bargaining unit work.

      The district court noted that the arbitration award itself did not expressly

differentiate between pre- and post-installed anchor work, so the court concluded

the award was ambiguous as to the proper scope of the CBA. The district court,

therefore, ruled that the arbitrator did not decide the issue of post-installed anchor

bolt testing and inspection. On the basis of the trial testimony, the district court

determined that pre- and post-installed anchor work should be considered

separately for purposes of the CBA.

      The record before us indicates, however, that at the time of arbitration, the

only matter in dispute was post-installed work. The parties apparently never

disputed that pre-installed anchor bolt inspection was part of the CBA. The

president of SEC described the anchor bolt work as testing bolts “installed after

concrete is poured.” We therefore conclude that the arbitrator decided that post-




                                           3
installed work was covered work when he found Appendix B to be a part of the

CBA.

       At oral argument, SEC attempted to distinguish anchor bolt testing from

anchor bolt inspection, and to argue that the arbitrator’s finding that the CBA

covered “bolt testing inspection” included only inspection work and not testing.

Because this argument was not included in SEC’s briefs to this court, we consider

it waived. Even if it were not waived, however, the argument would fail. SEC

appears not to have raised such a distinction in the arbitration proceedings. Indeed,

SEC used the words “bolt testing” and “bolt testing inspection” interchangeably in

its arbitration brief, which suggests that, to the extent post-installed testing work

and post-installed inspection work could be considered distinct from the standpoint

of CBA coverage, both were at issue in arbitration. And we read the arbitrator’s

decision as considering bolt testing and inspection together when it concluded that

they were covered work.

       Because the arbitrator decided that post-installed testing and inspection were

covered work, the district court should have considered this issue to have been

previously decided and should have given preclusive effect to the arbitration

proceeding.




                                           4
      SEC has cross-appealed, seeking an award of attorneys’ fees for itself and a

reduction of fees awarded to Trustees. In light of our decision, SEC is not entitled

to fees. Trustees may be entitled to a larger award because the district court

awarded fees based on the ratio of Trustees’ successful claims to unsuccessful.

      Accordingly, the district court’s judgment is REVERSED, and the matter

REMANDED for further proceedings.




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