                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 16 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         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;                           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
                    UCLA Law School, Los Angeles, Caliornia

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.

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

the questioned work was covered.

       Prior to trial, in its opposition to Trustees’ motion for summary judgment,

SEC argued that the CBA covered only work that required a building/construction

inspector’s license. In its reply, Trustees argued that SEC was precluded from

litigating the licensing issue because an arbitrator had already decided the issue of

whether the work was covered. The district court ruled that collateral estoppel did

not bar SEC’s contention that the CBA applied only to work requiring a license.

The district court did not directly address whether the post-installed anchor bolt

testing and inspection issue, which is a somewhat different issue than the licensing

issue, had been decided by the arbitrator. At trial, Trustees unsuccessfully argued

that the arbitrator’s decision precluded SEC from litigating the issue of post-

installed anchor bolt work.

       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 found that

Appendix B, describing covered work, was part of the CBA and that it covered

“bolt testing inspection.” SEC had contended that Appendix B was not part of the

CBA.


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      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

transcripts from the arbitration proceeding reflect that the issue, with respect to

Appendix B, was post-installed anchor bolt testing and inspection. 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-installed work

was covered work when he found Appendix B to be a part of the CBA.

      At oral argument, SEC attempted to distinguish, for the first time, 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




                                           4
not testing. SEC, however, has never raised such a distinction in any prior

proceeding. We decline to consider it.

      Since we conclude that the arbitrator’s decision that Appendix B, covering

post-installed testing and inspection, was part of the CBA, the district court should

have given preclusive effect to the arbitration proceeding.

      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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