author: CURTIN, Chief Judge.

text:
    UNITED STATES of America, v. STEERWELL LEISURE CORP., INC., Burt Steir, Larry Shapiro, Peter Scattolini and Michael Sanders, Defendants. UNITED STATES of America, v. Larry SHAPIRO, Defendant.
    Nos. CIV-84-51C, CIV-84-52C.
    United States District Court, W.D. New York.
    Nov. 16, 1984.

      Salvatore R. Martoche, U.S. Atty., Buffalo, N.Y. (Kathleen M. Mehltretter, Asst. U.S. Atty., Buffalo, N.Y., of counsel), for United States of America.
    Cullen & Wall, Boston, Mass. (Albert F. Cullen, Jr., and Robert V. Carr, Boston, Mass., of counsel), and Boreanaz, Baker & Humann, Buffalo, N.Y. (Patrick J. Baker, Buffalo, N.Y., of counsel), for defendants.
   CURTIN, Chief Judge.

This case concerns the alleged distribution of video games which, the government contends, infringe upon valid copyrights. Several motions are pending. The crimes charged in the indictment are conspiracy to violate 17 U.S.C. § 506(a) and 18 U.S.C. § 2319(b)(2)(B), relating to copyright infringement (Count I); substantive copyright infringement offenses (Counts II — IV); and interstate transportation of stolen goods (Counts VII-IX).

The defendants essentially claim that Counts I-VI of the indictment fail to properly allege violations of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319(b)(2)(B). Section 2319(b)(2)(B) provides for a maximum penalty of two years imprisonment and a $250,000.00 fine for violations of section 506(a) if the offense “involves the reproduction or distribution, during any one-hundred-and-eighty-day period, of more than seven but less than sixty-five copies infringing the copyright in one or more ... audiovisual works.”

Defendant Steir also argues that, prior to January 20,1982, 17 U.S.C. § 506(a) did not give adequate notice that video games could be the subject of a copyright infringement offense. This is the date of the Second Circuit’s decision in Stern Electronics v. Kaufman, 669 F.2d 852 (2d Cir.1982). Steir also attacks each count of the indictment because a “first sale” is not alleged.

Counts VII-IX allege violations of 18 U.S.C. § 2314, concerning interstate transportation of stolen items worth $5,000.00 or more. Defendants contend that infringing video games are not “goods, wares, merchandise,” etc., which can be the subject of a prosecution under the statute.

The defendants have also filed a motion to suppress evidence seized pursuant to several search warrants issued by United States Magistrates.

Finally, defendant Shapiro has moved to dismiss the indictment due to certain expert testimony considered by the grand jury.

For the reasons stated below, these motions are denied.

I.

With respect to Counts I-VI, the defendants contend that dismissal is required because the indictment fails to charge “distribution” of infringing items. In Stern v. Kaufman, supra, the Second Circuit held that video games are “audiovisual works” subject to copyright protection. The indictment specifically alleges that “the defendants did willfully and unlawfully ... distribute to the public” infringing video games (Indictment, CR-84-51, at p.4).

Reproduction and distribution of copyrighted works are among the exclusive rights of copyright owners. 17 U.S.C. § 106. The present indictment does not charge reproduction. It does allege distribution. The defendants attack this allegation by focusing upon other language in the indictment which charges the defendants with publicly performing and displaying the video games (Indictment, CR-84-51, at p.4).

The argument is that public performances and displays do not constitute distribution and that the business arrangements of the defendants did not amount to distribution. It is not necessary at this time to reach a legal conclusion upon the effect of the charges of performance and display. In American Vitagraph, Inc. v. Levy, 659 F.2d 1023, 1027 (9th Cir.1981), the court stated that mere performance does not amount to publication or distribution. However, the case does not stand for the proposition that performance and display are immaterial to the question of distribution.

More significantly, the court cannot, on a motion to dismiss, accept the defendants’ way of characterizing the various transactions involved in this case. The indictment has charged distribution, and the government must now be given the opportunity to prove it. The motion to dismiss for failure to properly allege distribution is denied.

II.

The motion to dismiss for lack of notice is also denied. The dates upon which the alleged violations took place all occurred before the date of the decision in Stern v. Kaufman. Before Stern, the question of whether video games qualified for copyright protection was not definitively settled.

However, it is not necessary that the law be absolutely settled. A defendant is on sufficient notice as long as the law is clear enough so that he is informed that the course of conduct he contemplates may fall perilously close to the line which separates what is legal from that which is not. Copyrightability of intangibles is hardly a novel idea. United States v. Bottone, 365 F.2d 389 (2d Cir.1966). The defendants in this case were on sufficient notice that the conduct alleged in the indictment was illegal. The motion to dismiss for lack of notice is denied.

III.

The absence of an explicit allegation concerning a “first sale” is also not grounds for dismissal of this indictment. The first sale doctrine is the principle that a copyright owner loses his exclusive right to sell a particular copy of his work after he parts with title to that particular copy. United States v. Moore, 604 F.2d 1228 (9th Cir.1979). However, this doctrine applies only to copies that are lawfully made. United States v. Drum, 733 F.2d 1503, 1507 (11th Cir.1984).

The present indictment contains allegations which, if true, preclude the possibility of a first sale. Specifically, the defendants are charged with distributing “unlawfully manufactured and unauthorized copies” of certain audiovisual works. The indictment is therefore sufficient.

IV.

The defendants next attack the legal sufficiency of Counts VII-IX, which charge them with interstate transportation of stolen goods. See, 18 U.S.C. § 2314. Primary reliance is placed upon the Fifth Circuit’s decision in United States v. Smith, 686 F.2d 234 (1982). Smith held that the words, “goods, wares [or] merchandise,” as used in 18 U.S.C. § 2314, were not meant to describe such incorporeal privileges as copyrights. 686 F.2d at 241.

However, Smith is not the law in this circuit. Judge Friendly’s opinion for the Second Circuit in United States v. Bottone, 365 F.2d 389, stated in no uncertain terms that intangible rights, embodied in tangible objects which are not themselves stolen, can be the basis of a prosecution under 18 U.S.C. § 2314. Accord, United States v. Drum, 733 F.2d 1503; United States v. Gallant, 570 F.Supp. 303 (S.D.N. Y.1983). The motion to dismiss Counts VII-IX is therefore denied.

V.

Defendant Shapiro’s motion to dismiss the indictment due to what he calls improper testimony by a grand jury witness is also denied. Shapiro argues that an expert witness’s grand jury testimony, in which he stated his opinion that the video games at issue here infringed certain copyrights, usurped the function of the grand jury. This argument is not persuasive. The grand jury was free to accept or reject this testimony concerning infringement. The grand jury also could have rejected one expert’s testimony on the ground of bias. (The witness was an employee of the manufacturer of the infringed games.) The defendants have failed to overcome the presumption that the grand jury proceedings were conducted according to law.

VII.

Finally, the defendants have moved to suppress physical evidence seized pursuant to warrants signed by United States Magistrates in Buffalo, New York, and Newark, New Jersey. This motion is also denied.

As a preliminary matter, the court notes that the government’s response to this motion relies primarily upon the recent decision of the Supreme Court in United States v. Leon, — U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In that case, the Court modified the exclusionary rule, holding that it would not be applied to suppress evidence seized in good faith reliance upon a search warrant. However, this does not mean that trial courts ought to neglect making a determination of the probable cause issue. In a case such as this one, involving a difficult criminal statute, the government should have directed more of its energy toward the sufficiency of the affidavits upon which the warrants were based.

The affidavit of Special Agent John D. Culhane was the basis for 30 warrants authorizing searches of a Steerwell location in Cheektowaga, New York, and 29 businesses in the Buffalo area where allegedly infringing games leased by Steerwell were located. An affidavit by Special Agent John F. Campanella was the basis of the warrant authorizing the search of a Steer-well location in North Bergen, New Jersey.

The objects of both warrants were audiovisual works, computer programs, and business records relating to video games which were substantially similar or identical to video games which are protected by valid copyrights. Particular attention was directed at games which were thought to infringe the following video games and their respective copyright holders:

Copyright Holder Video Game
Midway Manufacturing Co. GALAXIAN
Midway Manufacturing Co. PAC-MAN ■
Midway Manufacturing Co. Nintendo of America, Inc. RALLY-X DONKEY-KONG
Konami Industry Co., Ltd. AMIDAR
Gremlin Industries, Inc., a/k/a Sega Enterprises, Inc. FROGGER

See Culhane affidavit [hereafter “Culhane,”] p.4.

The Culhane and Campanella affidavits relied heavily upon investigators employed by the firms whose copyrights were allegedly infringed. For example, Robert Landry of the Midway Company went to the City Lights bar in Buffalo and examined what he thought to be an infringement of the PAC-MAN video game. The game at the City Lights had the words “PAC-MAN” on it and was enclosed in a white cabinet. Landry concluded it was an infringing game, because real PAC-MAN games are in yellow cabinets with red PAC-MAN figures. The electronic figures used in the game at City Lights were identical to real PAC-MAN figures (Culhane, pp. 11-12, ¶ 29).

Jon Pederson is Technical Services Manager for Nintendo, Inc., holder of the DONKEY-KONG copyright. In January of 1983, he examined a game called “Congorilla” at Masullo’s restaurant in Buffalo. He concluded that “the play of the game” was exactly like DONKEY-KONG, “except that the play sequences were out of order” (Culhane, p. 9, ¶ 25).

Approximately one month earlier, Agent Culhane had posed as a person opening a video arcade and spoke to Michael Sanders of Steerwell, Inc. Sanders told Culhane that one had to be careful of copyright violations and that one could get into trouble with “bad” games. Later, Culhane spoke with Peter Scattolini, a Steerwell manager. Scattolini told Culhane that “ ‘CONGORILLA’ was supposedly an infringement on a copyright and the Justice Department would normally investigate that type of violation.” (Culhane, pp. 5-6, ¶¶ 12, 14, 17.) Culhane subsequently learned that in July, 1982, a federal court had issued a temporary restraining order preventing Steerwell from infringing upon DONKEY-KONG through the use of games called “Congorilla,” “Crazy-Kong,” and “Donkey-Kong” (Culhane, p. 5, ¶ 12).

Mr. Landry, Midway’s expert, examined a game called “Galaxy” and concluded that it infringed upon Midway’s copyright for GALAXIAN. The game had been purchased from Steerwell and had no copyright information on its electronic board. Landry said that “the play of the game is exactly the same as ... ‘GALAXIAN.’ ” (Culhane, pp. 9-10, ¶ 26).

Landry reached a similar conclusion with respect to “Gobbler,” a video game also purchased from Steerwell. He examined this game and noted that the figures were different from those on Midway’s PAC-MAN but that “the play” of the two games was identical. Landry’s opinion was that Gobbler was an infringing game (Culhane, p. 11, II28).

In the same way, Mr. Landry made a' determination that a game called “Bull Frog” infringed upon Midway's copyright for FROGGER. Landry examined a “Bull Frog” game at a Buffalo restaurant and saw that its electronic board had no copyright information. He concluded that it was an infringing game (Culhane, p. 10, II27). Moreover, Agent Campanella described the play of “Bull Frog” during a telephone conversation with an attorney for FROGGER’s copyright holder (Sega Enterprises). The attorney indicated that “Bull Frog” plays exactly as FROGGER does (Culhane, p. 10, ¶ 27).

A game called “Amigo” was described by Agent Campanella to Special Agent Warren Flagg. Agent Flagg had done extensive work investigating infringements upon a game called AMIDAR, whose copyright was held by Konami Industry Co., Ltd. Flagg’s opinion was that “Amigo” infringed the AMIDAR copyright (Culhane, p. 12, 1130).

Agent Campanella examined an unnamed game at Millie and Dave’s bar in Buffalo, New York. The game had no copyright information on it and had a play sequence similar to that of the RALLY-X game. Midway holds the copyright for RALLY-X. Campanella described the untitled game to a Midway investigator. Based upon Campanella’s description and the absence of copyright information, the investigator concluded that the game was an infringement of the RALLY-X copyright (Culhane, pp. 12-13, ¶ 31).

During the course of their investigation, the agents learned that “circuit boards” which determine the play of a particular video game can be copied “relatively easily and at minimal expense.” They also became aware that illegal games usually can be identified by the absence of a copyright notice or the presence of a false copyright notice, logo, or. label. Illegal circuit boards can be identified in the same way (Culhane, pp. 3, 119; 34-35, II 63).

The burden of proof in a criminal copyright case is particularly onerous. Works which are very similar to a protected work may still be found not to infringe that work. The nature of the offense is such that questions of probable cause must be addressed most carefully, because it is not illegal to possess works which come close to being infringements. It follows that it is, and should be, relatively difficult to establish the probability that criminal infringement has occurred. United States v. Bily, 406 F.Supp. 726 (E.D.Pa.1975).

The government’s theory, as revealed by the affidavits, is that Steerwell leased video games to various businesses and that these games were substantially similar to games protected by copyrights. Substantial similarity is established “when an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966). This is shown when the questioned work is so similar to the protected work that “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). Further, copyrights do not protect ideas, but only the expression of ideas. Atari, Inc. v. North American Consumer Electronics Corp., 672 F.2d 607, 615 (7th Cir. 1982). In a criminal case, the elements of willfulness and the purpose of commercial gain are added. 17 U.S.C. § 506(a); 18 U.S.C. § 2319.

With these principles in mind, I find that there was probable cause to believe that the video games called “Congorilla,” “Galaxy,” “Gobbler,” “Bull Frog,” and “Amigo,” were, respectively, infringements upon the copyrights for DONKEY-KONG, GALAXIAN, PAC-MAN, FROGGER, and AMIDAR. I also find that there was probable cause to believe that the untitled game at Millie and Dave’s bar infringed the copyright for RALLY-X and that the “PacMan” game examined by Mr. Landry at the City Lights bar infringed the PAC-MAN copyright.

In the cases of “Congorilla,” “Galaxy,” “Bull Frog,” the untitled game, and the “Pac-Man” game at the City Lights bar, persons employed by various copyright holders viewed the games (or had them described to them) and concluded that they were illegal games. The possible bias on the part of these persons may reduce their credibility as witnesses before a jury, but the magistrate was entitled to accept their conclusions, absent any indication of deliberate falsification. With respect to “Amigo,” an agent experienced with investigating infringements of the AMIDAR copyright believed that AMIDAR was infringed.

However, a note of caution should be sounded. A magistrate’s determination of probable cause would be facilitated if the agents’ affidavits contained more details concerning the comparisons between protected games and infringing games. The details would not need to be technical. The finding of substantial similarity is one that is based upon the view of a lay person. See, Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d at 1022; Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d at 489. Accordingly, probable cause could be established by a lay person’s description of the shape of a game’s figures, the pattern of play, the sounds that accompany the play of the games, the scoring, and other factors.

The lack of such detail in the affidavits accompanying the warrants in this case does not prevent a finding of probable cause. The magistrates were informed that copying circuit boards is rather easy. Several games had no copyright information which is, as it were, a trademark of illegal games. Agent Culhane’s conversations with Sanders and Scattolini at Steer-well’s store in the Buffalo area gave further indication that the various games were illegal. Therefore, there was probable cause to search Steerwell’s Buffalo area location for infringing games, circuit boards, and related business records.

There was also probable cause to search the 29 other Buffalo area locations. Agents observed “Congorilla” games at twelve of these places, “Bull Frog” at four, “Galaxy” at four, “Gobbler” at six, bogus “Pac-Man” games at four, an untitled game similar to “Gobbler” at one, untitled games similar to RALLY-X at two, and a game called “Rally-Z” at one location. Each location named in the warrants was a business at which agents had observed at least one video game which they had reason to believe was illegal.

The warrant for the search of Steerwell’s location in North Bergen, New Jersey, was also supported by probable cause. This warrant was issued on January 22, 1983, two days after the execution of the warrant authorizing the search of Steerwell’s Buffalo location. This warrant was based upon an affidavit by Agent Campanella.

The Campanella affidavit closely parallels the Culhane affidavit. However, it also contains statements taken from Scattolini and Sanders shortly after they were arrested during the search of Steerwell’s Buffalo area location. (Campanella affidavit, pp. 14-16.) Sanders and Scattolini admitted that Steerwell frequently handled illegal, or “brown bag,” video games.

They also stated that these games were shipped from Buffalo to New Jersey every month. Sanders said that Steerwell’s books at the Buffalo location were altered to conceal the fact that Steerwell dealt with illegal games. Finally, Scattolini said that Steerwell’s headquarters were at the North Bergen location. Thus, there was ample probable cause to search this location for infringing games and related items.

The motions to suppress the evidence seized pursuant to the warrants are denied.

So ordered.

      . 17 U.S.C. § 506(a) provides as follows:
      Any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18.

      . I.e., Art’s Deli, Alma’s Fun Shop, Barnaby's, City Lights, Gem Soul City, Keith’s Deli, Lloyd’s Lounge, The Maple Leaf, Masullo’s, McCompton’s, Miller's Pub, and the Pollex Deli (Culhane, pp. 17-30, ¶¶ 34-36; 40-43; 45-47; 49-51; 55).

      . At Alma’s, Barnaby’s, Cameron’s, and Reid’s Superette (Culhane pp. 17-20, 31, ¶¶ 34, 36, 39, 57).

      . At Club 1218, The Cracker Box Lounge, The Palladium, The Cavern (Culhane, pp. 22, 29, 33, ¶¶ 40, 53, 60).

      . At Alma’s, Ciano’s, Kar-Cyn’s Straw Hat, Unnamed Bar, Squeezer Floyd's, and The Gate (Culhane, pp. 17-, 21, 23, 32-33, ¶¶34, 39, 44, 58-59, 61).

      . At Alma’s, Barnes’ Door, City Lights, and the Malamute (Culhane, pp. 17, 19, 21, 26, ¶¶ 34, 37, 40, 48).

      . This game was seen at Pete’s Pizzeria. Licensing records indicated that a PAC-MAN game was at this location, but no PAC-MAN game was observed there (Culhane, p. 30, $54(b).

      . At Millie and Dave’s and at the Thruway Inn (Culhane, pp. 28, 34, ¶[¶ 52, 62).

      . At Barnes’ Door (Culhane, p. 20, ¶ 37).

      . Since the search of Steerwell’s Buffalo area location was supported by probable cause, so too were the arrests of Sanders and Scattolini. Therefore, their statements were properly taken after they were advised of their rights. No deficiency in the Miranda warnings is alleged here.


source: Caselaw Access Project

author: SHAPIRO, District Judge.

license: Public Domain

text:
    William BENDER v. HIGHWAY TRUCK DRIVERS AND HELPERS LOCAL 107.
    Civ. A. No. 80-0534.
    United States District Court, E.D. Pennsylvania.
    Nov. 19, 1984.

      Harry Lore, Philadelphia, Pa., for plaintiff.
    William Einhorn, Cheltenham, Pa., for defendant.
   MEMORANDUM OF DECISION

SHAPIRO, District Judge.

This action is the penultimate phase of the litigation arising from the decision of the General Executive Board (“GEB”), International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“IBT”) to merge Local 1 (ACA) Broadcast Employees of the IBT (“Local 1”) into the Highway Truck Drivers and Helpers Local 107 (“Local 107”). Prior to the merger, Local 1 was a small local union predominantly representing workers in the radio broadcast and insurance industries whose members were citizens of New York and Pennsylvania. William Bender, former Secretary-Treasurer, Business Agent, and Chief Executive Officer of Local 1, was and is a citizen of New York. Local 107 is a large union predominately representing truck drivers that, in July 1975, had no active members who were citizens of New York.

In an earlier phase of this litigation, Bender and Local 1 filed suit against IBT and Local 107 to enjoin the GEB’s merger order. Additionally, Bender appended a claim against IBT and Local 107 for salary allegedly owed him for services he rendered to Local l’s membership both before and after the merger order. IBT counterclaimed for. enforcement of the merger order. The Honorable Edward R. Becker, then a judge of this court, denied plaintiff’s motion for a preliminary injunction against the merger order on March 26, 1976. Local No. 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., 419 F.Supp. 263, 269 (E.D.Pa.1976).

Following trial on the merits, Judge Becker made his denial of an injunction against the merger order final and entered judgment to enforce it. On Bender’s pendent claim for salary, the court held Local 107 liable as the successor union for Bender’s salary for work performed for Local 1 prior to the merger but denied Bender recovery of any salary for post-merger services. Local No. 1 (ACA), William Bender, et al. v. International Brotherhood of Teamsters, Local 107, et al., 461 F.Supp. 961 (E.D.Pa.1978).

A series of cross-appeals followed: Local 1 and Bender appealed the court’s denial of injunctive relief; Bender appealed the court’s denial of any post-merger salary; and Local 107 cross-appealed the court’s salary award for pre-merger services. The Court of Appeals affirmed the validity of the GEB’s merger order. However, it held there was no pendent jurisdiction over Bender’s salary claim and vacated the salary judgments. Local No. 1 (ACA), William Bender, et al. v. International Brotherhood of Teamsters, Local 107, et al., 614 F.2d 846 (3d Cir.1980).

Following its partial vacation of Judge Becker’s 1978 decision, the Court of Appeals granted Bender’s motion to amend his pleadings under 28 U.S.C. § 1653 to allege diversity of citizenship as the jurisdictional basis for his salary claim. Id. at 852-53 (as amended February 26, 1980). Bender then amended his original action (Civil Action No. 75-2684) by dropping the merger claim. Bender also re-filed his salary claim in a new action against Local 107 only (Civil Action No. 80-534). On July 27, 1982, Judge Becker held that Bender could not drop the merger claim to create diversity jurisdiction at such a late date. But Judge Becker permitted the new action; since Bender had never become a member of Local 107, there was complete diversity between Bender and Local 107 in 1980 when the new action was commenced. Local No. 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., (Civil Action No. 76-6284) and William Bender v. Highway Truck Drivers and Helpers Local 107, (Civil Action No. 80-534), 543 F.Supp. 1321 (E.D.Pa.1982). This case, William Bender v. Highway Truck Drivers and Helpers Local 107, Civil Action No. 80-534, was transferred to the docket of this court on April 10, 1983. Now before this court is Bender’s 1980 action against Local 107 as Local l’s successor union for salary allegedly owed him for servicing the Local 1 membership. Also before this court is Local 107’s counterclaim, asserting that Bender must reimburse Local 107 both for salary he paid himself and for all expenditures he made on behalf of Local 1 subsequent to July 21, 1975, when IBT ordered Local 1 merged into Local 107.

To understand the claims asserted by both sides, the allegations are summarized according to the relevant time periods.

Period I: January 1, 1972 — July 21, 1975

This is the period prior to merger when Local 1 did not pay Bender. (Bender was paid $200 per week from his election as Secretary-Treasurer and member of the Local 1 Executive Board in May, 1971 through December, 1971.) In both 1974 and 1975, Local l’s Executive Board voted to pay Bender a salary for 1972-75 “when and if” Local 1 obtained the money. It is undisputed that Local 1 never had sufficient funds to pay Bender any salary prior to its merger with Local 107.

Bender asserts that the Local 1 Executive Board resolutions imposed an obligation to pay his 1972-75 salary, amounting to $40,801.37, on Local 1 and Local 107, its financially solvent successor. Local 107 contends that Local l’s actions were procedurally irregular and cannot bind Local 107.

Period II: July 21, 1975 — November 8, 1978

This is the interval between the IBT order that Locals 1 and 107 be merged and the district court decision upholding the validity of the merger. During this time, Bender used funds of the former Local 1 to finance litigation aimed at invalidating the merger, pay himself a salary of $7,591.68, and pay other Local 1 expenses (e.g., rent, telephone). Local 107 counterclaims for these and any other expenditures on the grounds that following the merger order, Local 1 of the IBT ceased to have a legal existence. Furthermore, Local 107 asserts that Bender was not authorized to expend funds on behalf of Local 1 members, as Local 107 had expressly ordered Bender not to continue servicing the Local 1 membership. Bender contends that the legal status of Local 1 was in doubt until the court ruled on the merits of the merger order.

Period III: November 8, 1978 — Present

This period is not covered by the present claims. Judge Becker’s November 8, 1978 order required Bender to turn over all property and funds under Local l’s control to IBT or Local 107. On October 5, 1982, Judge Becker held Bender in contempt and ordered him to pay $2,968.26 to Local 107 within thirty (30) days to purge himself. See Memorandum dated September 11, 1982 and Order dated October 5, 1982. Following his unsuccessful appeal, Bender satisfied this judgment. On October 23, 1983, Local 107 acknowledged receipt of Bender’s check for $2,968.26; its petition for attorneys’ fees in connection with the contempt proceedings is pending.

This Opinion constitutes the court’s findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). The findings of fact in Judge Becker’s 1976 and 1982 Opinions as well as the Court of Appeals’ 1980 Opinion are res judicata and, where relevant, are relied on by this court. The record before this court for Period I is identical to the record that was before Judge Becker in his vacated 1978 Opinion. We will quote his Opinion where, following our independent determination, we agree with his thorough and thoughtful analysis of the relevant considerations. The record before this court for Period II includes additional documents as stipulated by the parties: Documents attached to the Affidavit of William J. Einhorn, submitted in support of defendant’s Cross-Motion for Summary Judgment Dismissing Plaintiff’s Complaint and Granting it Judgment on its Counterclaim, and labeled Exhibits A, B, and C. This court’s findings are based on this record and statements of counsel at closing arguments before this court on January 13, 1984.

FINDINGS OF FACT

This court finds that:

Period I: Bender is entitled to salary of $40,801.37 for services rendered the membership of Local 1 from January 1, 1972 through July 21, 1975.

Period II: Since an International union may exert substantial authority over its subordinate locals (including the power to order mergers), Bender had no right to take actions and make expenditures on behalf of Local 1 subsequent to the July 21, 1975 merger order. Accordingly, $15,-837.73 is a set-off to Bender’s salary award; this represents all post-July 21, 1975 expenditures on behalf of Local 1, its officers, and its litigation, with the sole exception of dues paid to the International union on behalf of members of Local 1 (regarded by the International union as due payments on behalf of new Local 107 members).

Period I: January 1,1972 — July 1975 William Bender’s Salary Claim

The relevant history is summarized in Judge Becker’s 1976 Opinion. Local 1 was originally affiliated with the American Communications Association (“ACA”), “a labor organization which pioneered in the representation of employees in the radio broadcast industry,” in the 1930’s and 1940’s. 419 F.Supp. at 277. However, the ACA subsequently came upon “hard times” and, in 1966, sought affiliation with the large IBT. At that time, the ACA consisted of four local unions; Local 1 was the smallest, with only 50 members. “Local l’s IBT charter application was filed on November 2, 1966. The signers, including ... Bender, pledged themselves ‘to be governed by the International Constitution.’ Local l’s charter was granted on November 15, 1966. The charter contract, signed on April 21, 1967, on behalf of Local 1 ... obligated Local 1 to ‘abide by the provisions of the International Constitution.’ ” 419 F.Supp. at 278.

Following affiliation, Bender worked as an organizer, particularly directing his energies to the insurance industry. Bender successfully organized a small number of insurance industry employees; however, for a variety of reasons, see 419 F.Supp. at 279, his efforts resulted in few new Local 1 members. Local l’s membership during 1967-1972 never rose above 115. Judge Becker found that,

In the wake of these developments, Local 1 has remained a tiny local union whose resources are as limited as its membership. Local 1 had been in poor financial condition since affiliation. It had no paid employees between November 1966 and May 1971. Although Local 1 paid plaintiff Bender a salary from May 1971 to December 1971, it was not able to continue these payments and has had no paid full-time representative since that time. It owes the Eastern Conference of Teamsters money for printing authorization cards, a debt it has been unable to pay since incurred in 1972. It had assets in 1972 of approximately $1,000.
Local l’s shortcomings have not been only financial. The local has also suffered from a bifurcation of its internal operations, a tale of two cities, as it were. For, while the local’s office is in Philadelphia, most of its members, including Bender, live and work in metropolitan New York. Local 1 has failed to hold monthly membership meetings as required by the IBT Constitution Art. XVI, § 2(a)(1), probably for that reason, and its executive board meetings were held in a strange way: two members would meet in Philadelphia one day and three in New York the next (with Bender). Moreover, an audit report prepared for the IBT showed, inter alia, that Local 1 failed to adopt bylaws, as required by the IBT Constitution, Art. XXII, § 1, and that the local was late in paying per capita sums due the IBT, the Eastern Conference, and the Joint Council, and in filing required trustee reports. These problems did not prevent Bender, a most dedicated man, from servicing the membership, and at no time has there been any complaint by members of Local 1 regarding servicing, negotiation of collective bargaining agreements, or the performance of duties by Bender. On the other hand, the local’s viability is at best marginal, and, in view of its financial difficulties, it lacks the capacity effectively to organize its jurisdiction.

419 F.Supp. at 279-80 (footnote omitted).

Local l’s small size and financial condition made it a likely candidate for merger. As Judge Becker related,

In the latter part of 1972, General Secretary-Treasurer Miller began a review of local unions with memberships of under 100 to determine whether to recommend a merger. A review of the situation of Local 1 revealed its small membership and poor financial condition, its inability to maintain a full-time, paid representative, its late per capita payments, its failure to adopt bylaws, and its failure to hold regular monthly membership meetings____ [Miller] brought the matter to the attention of the GEB at one of its quarterly meetings, held on July 17-20, 1973. He recommended that Local 1 be merged because of its small size, poor financial condition, failure to adopt bylaws, failure to hold regular monthly meetings, inability to maintain a full-time paid representative, and lateness in per capita payments. At its session of July 18, 1973, the GEB voted unanimously in favor of merger of Local 1 into an appropriate local union for the reasons advanced by Miller.
Implementation of the decision to merge Local 1 traveled a more troubled course. On July 27, 1973, Miller wrote Treretola, directing him to implement the Board decision by finding a local with which to merge Local 1____
On April 1, 1974, Treretola wrote Miller that he was unable to find a local willing to merge with Local 1. On April 30, 1974, Treretola moved before the GEB to disolve Local l’s charter, but then withdrew his motion____ [T]his motion was made solely because of difficulty in finding an accommodating local union into which Local 1 could merge. On May 2, 1974, the GEB voted to merge Locals 1 and 115. Local 115 opposed this merger. Moreover, on June 18, 1974, Local 1 and William Bender filed suit in the Court of Common Pleas of Philadelphia County to enjoin the merger. Named as defendants were the IBT, Frank E. Fitzsimmons and Edward Nangle____ [Tjhis lawsuit was dismissed by the court on December 31, 1974.
On January 24,1975, after the dismissal of the state court suit, the GEB reaffirmed its decision to proceed with the Local l’s merger. Bender was notified and directed to take certain steps to facilitate an orderly merger. Bender refused to comply. Thereafter, on March 4, 1975, Bender wrote to Miller to request a stay because of an organizing drive which Bender hoped would increase the size of Local 1. On March 17, 1975, Miller wrote to Bender that the request for a stay had been denied by the GEB because no substantial reason for changing its decision had been presented. At a GEB meeting held between April 28 and May 1, 1975, the GEB once again reaffirmed its decision. On July 7, 1975, Bender wrote Miller to suggest the organizing possibilities in the insurance industry, to no avail. The GEB reviewed its previous decisions, reviewed Bender’s letter and position, and concluded that Local l’s recent “organizing success” did not substantially change the situation or affect the reasons for the original merger decision.
On July 8, 1975, the GEB ordered that the previous decision merging Local 1 with Local 115 be amended to substitute Local 107 for Local 115, and Fitzsimmons wrote to Bender on July 16, 1975, notifying him of this decision. Local 107 is a large Philadelphia based local, the vast bulk of whose members are truck drivers. Local 107’s recent history has been marked by internal strife, its fabric frequently tattered by violence. On July 21, 1975, Messrs. Cotter and Barlow, as representatives of the IBT, appeared in the office of Local 1 and demanded that Bender immediately turn over the local’s charter, books, records, seal, bank accounts, membership lists, collective bargaining agreements, minutes, etc., and handed him two letters dated July 16, 1975, one from Murray W. Miller and the other from Frank E. Fitzsimmons. Bender continued to protest the merger. Local 107, which had a complete executive board, made no provision to include Bender thereon. On September 9, 1975, Louis J. Bottone, President of Local 107, sent out formal notification to members of Local 1 informing those who were given notice that their membership obligations would thenceforth accrue to Local 107, ‘as the successor to Local 1.’ This notice was followed by a certified letter on September 17, 1975, from Bot-tone to Local l’s members containing dues checkoff forms, personal data sheets and a membership card in defendant Local 107 with the Local 1 member’s name inscribed on it. These notices were prepared by the IBT for use by Bottone. Shortly thereafter the present lawsuit [to enjoin the merger] was filed.

419 F.Supp. at 281-82 (footnotes omitted).

Although Local 107 was an extremely odd partner for Local 1, it was within the IBT’s authority to order the merger. The Constitution and By-Laws of a union constitute a contract between the union and its membership. See International Association of Machinists v. Gonzales, 356 U.S. 617, 618-19, 78 S.Ct. 923, 924-25, 2 L.Ed.2d 1018 (1958). Consequently, since the IBT Constitution authorized merger of locals without their consent, the merger was valid. 614 F.2d 846, 850 (3d Cir.1980).

Bender worked without salary after January, 1972. On March 4, 1974, four members of the Local 1 Executive Board met in Philadelphia and passed the following resolution:

Motion that Brother Bender be paid back to Jan. 1972 on the basis of $10,000 per year (this shall be a liability of a Local and not of any individual member of the Executive Board) when and if the Local has the funds and $12,500 for year 1974.

Plaintiffs Exhibit No. la. The motion was recorded in the Minutes. Bender was present but listed as “not voting.” On March 14, 1974, the three-man New York branch of the Executive Board met and with Bender apparently voting this time, adopted an identical resolution. In 1975, the Executive Board met again in split sessions (on June 17 in Philadelphia, on July 22 in New York) and unanimously voted “to approve $15,000 for year of 1975 for salary for William Bender for services.” Plaintiffs Exhibit No. la. Passage of this resolution was recorded in the Minutes.

We agree with Judge Becker that,
The above salary resolutions constitute the basis for Bender’s claim against defendant Local 107 and defendant IBT in the present suit: $10,000 for the years 1972 and 1973, $12,500 for 1974, and $15,000 for 1975.
The four resolutions contain certain ambiguities on their face. The March 4, 1974 and March 14, 1974 resolutions state that the 1972 and 1973 salaries are expressly conditioned on Local 1 obtaining sufficient funds to pay the amounts. Both resolutions are silent as to whether the 1974 salary obligation is similarly conditional. We resolve this ambiguity by finding the bifurcated Executive Board, voting on March 4, 1974 and March 14, 1974, intended that the 1974 salary was to be conditional on the local obtaining sufficient funds. We base this finding on our inference from the entire record: The Executive Board of Local 1 was scrupulous, during the entire period 1971-75, to conserve the slender resources of Local 1, and not to take any actions in violation of its fiduciary duty as officers of the local____ To have approved the 1974 resolutions without the contingency would have been in gross disregard of that fiduciary responsibility. We infer that the Executive Board would not have done so, and therefore resolve the ambiguity in favor of implying the contingency provision into the votes on the 1974 salary. For an identical reason we resolve the ambiguity created by the differences between the June 17, 1975 and the June 22, 1975 resolutions pertaining to Bender’s 1975 salary (the latter containing the contingency, the former not) in favor of implying the contingency into the June 17, 1975 resolution.
Additionally, we find that the Executive Board meeting procedure utilized on the above occasions, whereby the Board met in bifurcated sessions of respectively four and three members each, constructively complied with Article XXV of the IBT Constitution, ____ The purpose of that provision is obviously to ensure that not fewer than four of the seven members of the Executive Board would take actions binding the local. The bifurcated meeting structure did not contravene this purpose, since at the two meetings, held within a week or ten days of each other, the full complement of Executive Board members had the opportunity to vote on the identical resolutions.
We find — indeed it was conceded by all — that Local 1 never had enough money to pay Bender a full salary at any time between January, 1972 and July, 1975, the date of the GEB merger order.

461 F.Supp. at 970-71.

Bender claims that Local 107 owes him $40,801.37 in back salary. Local 107 contends that these salary resolutions are not binding on Local 107 for these reasons:

1. Local 1 Executive Board members violated their fiduciary duty by creating salary obligations in the absence of by-laws that delegated such authority and by threatening the solvency of Local 1.
2. The purported contracts between Local 1 and Bender were and are unenforceable because of their indefinite and retroactive character.
3. The purposed contracts were and are sham because they were enacted with knowledge of and on account of the impending merger.

Local 107 charges that Local l’s Executive Board violated its fiduciary duty under the Labor Management and Reporting Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 501(a):

The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws and any resolutions of the governing bodies adopted thereunder____

Defendants are correct that § 501(a), rather than state law, governs officer compensation. Local 107 contends that Local l’s Executive Board violated § 501(a) by passing the salary resolutions because Local 1 had not adopted by-laws authorizing the Executive Board rather than the membership to approve officers’ salaries.

Local 1 did not comply with two provisions of the IBT Constitution: Article XXII, § 1, which mandates local union bylaws and Article XIV, § 2(a)(1), which mandates monthly general membership meetings. Local 1 never adopted by-laws at any time during the period from May, 1971 (when Bender became Secretary-Treasurer and Executive Board member) until July, 1975 (when IBT ordered the merger). Neither did Local l’s Executive Board hold monthly membership meetings during this period. But Local l’s failure to enact bylaws and hold membership meetings does not render its salary resolutions void for breach of fiduciary duty.

After reviewing the record, we find, as did Judge Becker, that during the relevant time period, “the IBT accepted regular monthly per capita payments from the Executive Board on behalf of the Local, accepted and approved regular trustees’ reports from the Executive Board of the Local, and in short treated Local l’s Executive Board as a bona fide regularly-constituted organization that was empowered to take actions on behalf of the membership of Local 1.” 461 F.Supp. at 969. The IBT did not take any action regarding Local l’s non-compliance even after receiving a June, 1972 auditor’s report expressly calling attention to Local l’s failure to enact bylaws. IBT did not view Local l’s non-compliance serious enough to warrant the International’s intervention at any time between 1971 and 1975.

Furthermore, IBT provided no guidelines regarding the content of by-laws or the voting rights of members and imposed no specific procedural requirements for passing binding salary resolutions. Therefore, there is no assurance that if there were by-laws, they would have included procedures for salary resolutions. IBT’s silence does not imply a lack of authority to set salaries; the IBT Constitution (Article XXII, § 3) expressly provides:

Any reduction in salary during a term of elected office in a local union or subordinate body shall be made only on the basis of adverse change to financial condition as attested to by the General Secretary-Treasurer ,of the International Union.

This section allowing reduction in salary only under certain conditions implies that the local unions do have the authority to set officers’ salaries otherwise.

This International’s silence with respect to procedure for setting salaries distinguishes this case from those referred to in defendant’s brief. Additionally, eases cited by defendant generally involved a union officer’s dishonest attempt to avoid by-laws in an effort to obtain an unearned bonus. In contrast, Bender seeks payment for work actually rendered on behalf of Local 1.

Local No. 92, International Assn. of Bridge, SRO Workers v. Norris, 383 F.2d 735 (5th Cir.1967), was a derivative action by local union members against their officers. Their International Union Constitution (Article XXIV, ¶ 4) expressly provided:

No office shall be made or abrogated, or salary for same be changed, without written notice, to be read at three consecutive meetings, at which final action shall be decided by a majority vote.

The court held that the officers had breached their fiduciary duty to the local union by increasing their expense accounts in violation of this express prohibition and adopting a resolution exempting their salaries from the necessity of membership authorization. McCabe v. International Brotherhood of Electrical Workers Local No. 1377, 415 F.2d 92 (6th Cir.1969), is similarly distinguishable. McCabe involved the dishonest attempt of union officers to increase their salaries by collecting double reimbursement for expenses in violation of a specific provision of the International Constitution; the court held this was a clear breach of trust.

Bender’s circumstances also differ in another regard. Both Norris and McCabe were brought by union members and/or officers against other officers. In our case there is no evidence that any member of Local 1 objected to the salary resolutions. No member of Local 1 disputed that Bender worked diligently on behalf of Local 1 for many years; no member disputed that Bender was entitled to reasonable compensation; no member objected to the use of union money to pay salary obligations; and no member claimed that the Executive Board’s salary resolutions were in any way improper. In fact, following the merger order, the members agreed with Bender’s resistance to it. The Executive Board salary resolutions were not a breach of fiduciary duty to the membership of Local 1.

Defendant next contends that the retroactive, contingent and vague character of the salary resolutions makes them unenforceable. The resolutions are not unenforceable because they are retroactive. In 1971, when Bender first became Secretary-Treasurer and Executive Board member, he worked for a salary of $200 per week. When Local 1 lacked the funds to pay his salary, Bender ceased receiving a paycheck but he did not waive compensation or agree to serve the union as a volunteer. Rather, Bender and the Executive Board had an implied contract, whereby Bender would recover the reasonable value of his services to Local 1 when Local 1 could afford his wages. The salary resolutions only confirmed an existing obligation.

But even if a new obligation were created by the salary resolutions, the same result would obtain. Bender’s past services to Local 1 were good and sufficient consideration for the Executive Board’s resolutions. It has long been the common law that “past services rendered may give rise to a moral obligation which is a sufficient consideration to support a promise to pay therefor.” In re Pohl’s Estate, 136 Pa.Super. 91, 92, 7 A.2d 14, 15 (1939). As was stated in Sutch’s Estate, 201 Pa. 305, 314, 50 A. 943, 945 (1902), “[h]e was not legally bound to pay them anything, but if he chose to consider that he in conscience owed them, the moral debt was a good consideration for the legal promise expressed in the [promissory] notes.”

The contract to pay Bender’s salary was not invalidated because on the Labor Organization Annual Report Form LM-3, in response to the query “total debts,” Bender answered “none.” Local l’s assets were so small that the likelihood of paying Bender was correspondingly remote. The intention of the contracting parties was that Bender’s salary would be paid only when and if Local 1 had sufficient assets; since Local 1 would pay only “when and if” it had the funds, there was the distinct possibility that Bender’s work would never be compensated. But the fact that the condition precedent which would trigger salary payment might not occur does not invalidate the contract.

The contracts were also sufficiently definite. The court agrees that “for a contract to be enforceable it must be of sufficient explicitness so that a court can perceive what are the respective obligations of the parties,” Soar v. National Football League Players Assn., 550 F.2d 1287, 1289-90 (1st Cir.1977) (applying Pennsylvania law). This condition has been met. As defendant correctly notes, for purposes of construction, the issues are the relevant intent of the contracting parties and definiteness of Local l’s promises at the time they were made. Restatement 2d of Contracts § 201(1). Thus, seeming uncertainties in the words of a contract may frequently be made clear by looking to the intent of the bargaining parties.

While the “when and if” language of the resolutions is admittedly vague to an outsider, the members of Local l’s Executive Board were all intimately familiar with Local l’s financial status. Bender himself was Treasurer. With the knowledge of the Executive Board, Bender took only small salary payments in 1975 and 1977. Both he and the Executive Board shared an understanding of the salary resolutions that was consistent with the International Constitution’s requirement that local unions could not take actions impairing their solvency. Had Bender sued for salary while Local 1 was still in existence, the court would have had to ascertain the exact nature of the parties’ intentions — i.e., which outstanding debts had priority, how much in liquid assets had to be available after salary payments, and so on. But since that situation did not occur, it is sufficient that the parties’ observable behavior indicated a shared common meaning.

Currently, we must determine whether Local 107 can afford Bender’s salary. In 1978, when the case was first tried, Local 107 submitted the following financial report for the period ending February, 1978:

ASSETS
Cash in Bank $ 51,387.76
Cash in savings account 546.55
Savings bond 520.00
Land 90,798.14
Building 89,206.91
Furniture and fixtures 49,871.23
Total Assets 282,330.59
LIABILITIES
Loan balance to International 90,000.00
Accounts payable 78,531.64
Total Liabilities 168,531.64
Total Net Assets $ 113,798.95

461 F.Supp. at 973.

As Judge Becker found,
The largest items of expense for each month (after the per capita tax paid to the International) were salaries for the officers and business agents of Local 107. We credit the testimony of Kenneth Moore, Secretary-Treasurer of Local 107, that there are ten full-time officers and business agents currently on the payroll, each earning approximately $35,-000 per year. This converts into a figure of approximately $27,500 per month for all ten.

Id.

Judge Becker then held:
[W]e think plaintiff Bender met his burden of establishing a prima facie case that Local 107 has sufficient net assets and cash flow to pay a $33,000 debt. If there was any reason why it could not, defendant Local 107 did not come forward with it. Indeed, even under a more stringent test, we believe that Local 107 is in a sufficient financial position to pay. We conclude, therefore, that the condition precedent has been satisfied, and that the contingent salary obligation has become a liability presently due and owing, payable by Local 107.

461 F.Supp. at 983-84. Local 107 has not claimed it is in poorer financial shape now.

Local 107’s final argument is that the contracts were a sham because Local l’s Executive Board enacted the resolutions only when they had knowledge of the impending merger. The record shows the following sequence of events:

July 18,1973 GEB of IBT voted to merge Local 1 into an appropriate local union.
March 4 and 14, 1974 First salary resolution.
April, 1974 Bender and Executive Board first learned of possible merger.
May, 1974 Bender and Executive Board learned that IBT intended to merge Local 1 into Local 115.
June 18, 1974 Bender and Local 1 filed suit to enjoin proposed merger.
December 31, 1974 Lawsuit dismissed.
January — June, 1975 Bender and Local 115 repeatedly requested cancellation of order to merge.
June 17, 1975 Philadelphia branch of Executive Board voted 1975 salary resolution.
July 8, 1975 GEB substituted Local 107 for Local 115 in merger order.
July 16, 1975 Fitzsimmons (President of IBT) wrote to Bender informing him of decision.
July 21, 1975 Officials demanded Bender hand over property of Local 1.
July 22,1975 New York branch of Executive Board voted 1975 salary resolution.

Though defendant has not proved that Bender knew of a possible merger prior to April, 1974, Bender and Local 1 have not convinced the court that they had not heard rumors regarding the possible merger of their union. While Judge Becker is correct that rumors are not legally sufficient notice of a merger, it strains credibility to believe that Local l’s Executive Board was not influenced by the possibility of an order to merge. In 1974 the Executive Board knew that some merger of Local 1 was being considered by GEB. By the time of the 1975 salary resolutions, the Executive Board of Local 1 was in the midst of an intense, protracted struggle to avoid merger with Local 107.

However, knowledge of a merger order does not render the salary resolutions sham. The Local 1 Executive Board believed it could successfully resist merger. When the 1974 salary resolution was passed, Local 1 had not yet been assigned a merging partner. The GEB was exploring possible mergers of a number of small local unions — Local 1 could reasonably hope to be among those spared. The Executive Board also knew it planned legal action if necessary to oppose any merger order. Locals 1 and 115 both opposed the first merger order and that merger was never consummated. The 1975 salary resolution was passed at the time the IBT amended its merger order to replace Local 115 with Local 107. Bender and the Executive Board planned to fight this merger also.

Even if Bender and the other Executive Board members did not believe they would be able to forestall a merger permanently, the salary resolutions were not sham. The purpose of the Executive Board resolutions were to ensure that Bender, a non-contractual employee, was legally entitled to compensation for his past services to Local 1. Any union absorbing Local 1 would absorb a viable and functioning union in large part due to Bender’s unflagging and much appreciated efforts. The Executive Board did not bind a successor union to employ Bender nor did it require a successor union to pay a severance fee.

Period II: Local 107’s Counterclaim

In its counterclaim, Local 107 seeks $17,923.48 spent by Bender following the July 21, 1975 merger. Local 107 claims this money succeeded to it on the effective date of merger. As of July 21,1975, Bender was told he would not be employed by Local 107 and was ordered to turn over all of Local l’s property, including its cash. However, Bender refused to accede and continued to hold himself out as chief executive officer of Local 1 and to spend union dues money on its behalf.

The evidence supports Bender’s argument that the Local 1 membership vehemently opposed merger, approved Bender’s opposition efforts, and desired Bender’s continuing services in collective bargaining negotiations. Few Local 1 members sent dues checkoff forms for Local 107, and questions arose regarding representation of Local 1 members which necessitated NLRB elections at Underwriters Adjusting Company and State Farm Mutual Automobile Insurance Company. Underwriters Adjusting Co. and Local 107, 227 N.L.R.B. No. 66, 1976-77 CCH NLRB ¶ 17,670 (1976); State Farm and Local 1 and Local 107, 225 N.L.R.B. No. 135, 1976-77 CCH NLRB ¶ 17,241 (1976).

Nevertheless, Bender’s actions directly violated IBT written directives delivered July 21, 1975 and Local 107 President Bot-tone’s letters of September 9 and 17, 1975. Representation rights of Local 1 members were not violated because they would be able to participate in the affairs of their new union, Local 107, although with considerably diluted voting power. A court may not intervene in internal union affairs unless a union constitution or by-laws deprive union members of rights guaranteed by the LMRDA. Therefore, this court may not set aside the merger order nor require the merged Local to finance Bender’s rebellious activities.

The circumstances here are similar to those in Zawada v. Pennsylvania System Board of Adjustment, 392 Pa. 207, 140 A.2d 335 (1958). In Zawada, an international labor union revoked the charters of several locals and notified Zawada that he was terminated as a District Chairman. Zawada responded by filing suit. During the course of litigation, counsel agreed that the elected local officials could continue to perform their duties until the Court’s final disposition of the charter forfeiture litigation. Subsequently, Zawada (through his wife and assignee) sought to recover compensation for his services.

The Pennsylvania Supreme Court found Zawada not entitled to compensation because his “services were thrust upon the appellee by the court order restraining the appellee from interfering with Zawada’s functions and were, therefore, not voluntarily accepted by the appellee.” 392 Pa. at 216, 140 A.2d at 339. Similarly, in the case at bar, Bender’s services and expenditures on behalf of Local 1 occurred in spite of Local 107’s strong opposition and the Pennsylvania Court’s reasoning is persuasive. In a passage reminiscent of Bender and Local 1, that Court wrote:

The bitterness and strife within this international labor union over the last several years has been intense and we cannot help but note Zawada’s deep involvement throughout every aspect of the dispute. Zawada undoubtedly rendered services to the Brotherhood but, with the exception of a small amount of work with regard to a lodge not a party to the dispute but directly traceable to the chaos resulting from the division of authority, those services were forced upon the Brotherhood against its wishes and are of questionable worth. Nor can we disregard the fact that the Brotherhood was caused great expense in having to furnish one of its officers as Zawada’s successor, in having to furnish that successor with a staff of assistants and in being forced to suffer through a period of divided authority in its government which caused needless duplication of effort, chaos and loss of prestige. The record clearly shows that Zawada, while occupying his judicially protected office, was actively engaged in activities detrimental to the authority of the union. To allow Zawada’s assignee to recover the value of the services he forced upon the appellee would frustrate the whole purpose of the law of restitution. Cf: Gerson v. Philadelphia, 342 Pa. 552, 555, 20 A.2d 283.

392 Pa. at 220, 140 A.2d at 341.

Though Bender could not legitimately ■represent IBT's Local 1 after June 21, 1975, we recognize that Bender was the preferred spokesman for many Local 1 members. These workers had a right not to join Local 107 but to join Bender in a “new Local 1,” an association 'unaffiliated with the IBT. Bender could seek recovery from members of a new Local 1 for expenses incurred in maintaining the new association. But Local 107 is not responsible for the cost of maintaining an unaffiliated union.

Judgment on the counterclaim will be entered in favor of Local 107. After reviewing Exhibit C, consisting of copies of checks written on Local l’s account from 1976-78 and signed by Bender and stipulated to as authentic by the parties, we award Local 107 $15,837.73 on its counterclaim and offset this amount from Bender’s salary award. This represents the total of post-merger checks written for all expenses, including salary, other than IBT dues and federal and state taxes.

CONCLUSIONS OF LAW

1. This court has jurisdiction over the parties.

2. This court has jurisdiction over the subject matter under 28 U.S.C. § 1332. Bender, who never joined Local 107, was and is a citizen of New York. Local 107 had no active members in New York in 1980, when this action was commenced.

3. Upon merger, Local 107 assumed all contractual obligations of Local 1, including $40,801.37 in salary owed to Bender for his services from January 1, 1972 through July 21, 1975.

4. Following merger, Bender was not entitled to expend any funds of Local 1.

5. Judgment in favor of Bender for $40,801.37 will be entered on the claim.

6. Judgment in favor of Local 107 for $15,837.73 will be entered on the counterclaim and offset against Local 107’s liability.

      . The Honorable Edward R. Becker was elevated to the Court of Appeals for the Third Circuit on December 3, 1981.

      . After the July 21, 1975 merger, Local 1 (ACA), affiliated with the Teamsters, ceased to exist. However, because Bender continued to head an association of members of this union, we will continue to refer to this group as Local 1 but it is now understood to mean “Local 1 unaffiliated with the IBT.”

      . We quote liberally from that res judicata Opinion. Its primary thrust concerned the historical relationship among the IBT, Local I, and Local 107. Since the IBT is not a party to this action, we do not consider this aspect of Local l's history but refer those interested to 419 F.Supp. 263 (E.D.Pa., op. June 21 as amended August 12, 1976).

      . Local 1 had 900 members in the early 1940’s. 419 F.Supp. at 278 n. 29.

      . This statement appears to be incorrect. Seven members of Local 1 were on its Executive Board, as required by the IBT constitution.

      . Art. IX, § 11, ¶ 1 of the IBT Constitution provides:
      The General Executive Board in its discretion shall have the power to merge local unions and other subordinate bodies under such terms and conditions and subject to such qualifications as the General Executive Board may determine, taking into consideration such circumstances as financial conditions, jurisdiction, location and such other factors as appear appropriate in connection with the local unions and other subordinate bodies involved.
      The GEB had exercised this authority over 150 times between 1966 and 1975. Defendant’s Exhibit No. 28.

      . The correct dates are June 17 and July 22, 1975. Plaintiffs Exhibit la.

      . The amount in controversy is derived as follows:

        1972 $10,000.00
      1973 10,000.00
      1974 12,500.00
      1975 8,301.37 ($15,000 pro-rated: $15,000 divided by 365 $40,801.37 days for the year = $41.09 per day. There are 202 days from January 1 through July 21; 202 days multiplied by $41.09 per day = $8,301.37

      . In the present action, Local 107 admits it succeeds to the liabilities of Local 1 and, accordingly, restricts its arguments to questioning the existence and validity of the alleged contracts between Local 1 and Bender. It is interesting to note that, quite likely, some liabilities of Local 1 became binding on Local 107 through a rather circuitous route. Arguably, Local 115 assumed the pre-May, 1974 liabilities of Local 1 when Locals 1 and 115 were ordered to merge in May, 1974. Although this merger was never consummated, it was effectuated upon order of the GEB. Then, when Local 1 was ordered to merge with Local 107, these pre-May, 1974 liabilities succeeded from Local 115 to Local 107.

      . Article XXII, § 1 provides in pertinent part: Each Local Union shall adopt its own separate Bylaws which must comply, and not conflict, with the provisions of the International constitution. Said Bylaws shall designate as the principal executive officer the President, the Secretary-Treasurer or the Recording Secretary.

      . Article XIV, § 2(a)(1) provides in pertinent part:
      General membership meetings shall be held monthly at such place and time as shall be designated by the Local Union Executive Board subject to disapproval by the General Executive Board. The .General Executive Board shall establish such conditions relative to the holding of meetings as in its judgment it deems advisable. Membership meetings may be suspended during any three (3) months between June and October by action of the membership at a meeting after reasonable notice of the intention to vote upon such motion.

      . Since the resolutions were stated in the Minutes, there is no evidence of any covert behavior on the part of the Executive Board.

      . See infra at p. 22.

      . The resolutions were designed to operate retroactively for 1972, 1973, January and February, 1974, and January through June, 1975.

      . The amount of $33,000 (or more precisely $33,209.69) is used as the relevant figure since Judge Becker set off the $7,591 Bender had previously taken as salary from the $40,801.37 owed.

      . The Executive Board’s action may be contrasted with corporate "golden parachute” clauses. The latter, which provide for severance payments, may be unenforceable if enacted with notice of an impending tender offer or during a hostile takeover battle.

      . See supra at p. 22.

      . Any such action would, at least in part, be barred by the statute of limitations. Also, any dues paid by Local 1 members after July, 1975 intended to support a new labor association headed by Bender are not the property of Local 107. However, since Bender has not proffered any evidence of such payments, we assume there were none and do not allocate Local 1 funds between Local 107 and a "new Local 1.” See Local Union No. 1075 v. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, et al, 716 F.2d 182 (3d Cir.1983).

      . Since payments made to the Internal Revenue Service and other taxing authorities were due by law, Local 107 is not entitled to have them offset against Bender’s salary award. Interest on the amounts awarded and set off shall accrue from this date of judgment. 42 Pa.C.S.A. § 8101.


author: RYAN, District Judge.

text:
    IDAHO PLUMBERS AND PIPEFITTERS HEALTH AND WELFARE FUND, Idaho Plumbers and Pipefitters Pension Fund, Idaho Plumbers and Pipefitters Apprenticeship and Journeymen’s Training Fund, Idaho Plumbers and Pipefitters Savings Trust Fund, National Plumbers and Pipefitters Pension Fund, the Southwest Idaho-Southeast Oregon Building and Construction Trades Council, AFL-CIO, Idaho State Pipe Trades Association, and Local Union No. 196 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Plaintiffs, v. TURNKEY CONSTRUCTION, INC., an Idaho corporation, and Union Plumbing and Heating, Inc., an Idaho corporation, Defendants.
    Civ. No. 83-1407.
    United States District Court, D. Idaho.
    Nov. 20, 1984.
    Andrew M. Chasan, Lyons, Bohner, Chasan & Walton, Boise, Idaho, for plaintiff “Trust Funds”.

      William L. Mauk, Alan C. Herzfeld, Skinner, Fawcett & Mauk, Boise, Idaho, for remaining plaintiffs.
    Wayne V. Meuleman, Meuleman & Miller, Boise, Idaho, David H. Wilson, Jr., Calvin L. Keith, Bullard, Korshoj, Smith & Jernstedt, P.C., Portland, Or., for defendants.
   MEMORANDUM OPINION

RYAN, District Judge.

INTRODUCTION

This action centers around the construction of the Morrison Center for the Performing Arts on the campus of Boise State University in Boise, Idaho. The plaintiffs seek redress for alleged violations of an agreement entered into between the Defendant Turnkey Construction, Inc. (Turnkey), as the general contractor on the project, and the labor unions whose members would be working on the project. Jurisdiction was taken pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976).

Plaintiffs Southwest Idaho-Southeast Oregon Building and Construction Trades Council, Idaho State Pipe Trades Association, and Local Union No. 296 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (hereinafter collectively referred to as “Pipe Trades”), and Idaho Plumbers and Pipefitters Health and Welfare Fund, Idaho Plumbers and Pipefitters Pension Fund, Idaho Plumbers and Pipefitters Apprenticeship and Journeymen’s Training Fund, Idaho Plumbers and Pipefitters Savings Trust Fund, and National Plumbers and Pipefitters Pension Fund (hereinafter collectively referred to as “Trust Funds”), moved for partial summary judgment on that portion of the Complaint alleging violations of the agreement by Turnkey. Defendant Turnkey filed cross-motions for summary judgment as to those same allegations.

FACTS

The dispositive facts are not in dispute. In September 1981, the State of Idaho awarded the contract for construction of the Morrison Center for the Performing Arts to Turnkey as the general contractor on the project. On October 21, 1981, Turnkey entered into a “Project Agreement” with various labor unions whose members would be working on the project. Turnkey subsequently entered into a written subcontract with Marcum, Inc., for the performance of the mechanical work on the project. This subcontract between Turnkey and Marcum included a provision in which Marcum agreed to comply with the terms of the Project Agreement. At the time this subcontract was executed, Mar-cum was signatory to a local collective bargaining agreement with Local 296 of the Plumbing and Pipefitters Union.

Marcum then entered into an oral subcontract with Defendant Union Plumbing and Heating, Inc. (Union Plumbing), for the performance of the plumbing, heating, and air conditioning work to be done on the project. At the time this oral subcontract was executed, Union Plumbing was signatory to a local collective bargaining agreement with Local 296 of the Plumbers and Pipefitters Union. Union Plumbing, however, did not agree to be bound by the terms of the Project Agreement. Construction began on the project in December 1981.

The collective bargaining agreement existing at the time construction began, between Local 296 and the local contractors, was scheduled to expire May 31, 1982. A new contract was negotiated and took effect on June 1, 1982. This agreement expired on May 31, 1983. Although a new agreement was entered into between the union and most local contractors, Union Plumbing was unable to reach a new labor agreement with Local 296 and the existing agreement between those parties expired without replacement on May 31, 1983. Union Plumbing, however, continued to do mechanical work on the project utilizing non-union personnel. The plaintiffs have brought suit against Turnkey and Union Plumbing alleging violations of the Project Agreement based upon the performance of non-union work by Union Plumbing subsequent to May 31, 1983.

DISCUSSION

The motions for partial summary judgment before the court deal with that portion of the Complaint alleging breach of Article X of the Project Agreement by Turnkey. Article X is commonly referred to as a “union signatory subcontractor clause” and provides in part:

The Employers shall contract or subcontract any work to be done at the site of the project only to persons, firms or corporations who agree in writing to comply with all of the terms and conditions of this agreement and sign the local agreement of the appropriate Union or Unions covering the work.

Plaintiffs Pipe Trades and Trust Funds contend that Article X obligates Turnkey to require its subcontractors and sub-tier subcontractors to agree in writing to be bound by the Project Agreement and to sign a local collective bargaining agreement with the appropriate unions. Plaintiffs also contend Article X imposes on Turnkey a continuing obligation to ensure that its subcontractors and sub-tier contractors comply with the terms of the Project Agreement and continue to be signatory to the local collective bargaining agreement with the appropriate unions. Plaintiffs argue that Turnkey should have terminated Union Plumbing’s work on the project upon Union Plumbing’s failure to be signatory to the appropriate local bargaining agreement.

Defendant Turnkey, on the other hand, asserts that Article X should be read literally, imposing on Turnkey only the obligation that they require their subcontractors to agree in writing to comply with the Project Agreement and, at the time of subcontracting, be signatory to the appropriate local bargaining agreements. Under Turnkey’s interpretation of Article X, its obligation was satisfied when it subcontracted the mechanical work to Marcum, and Mar-cum (1) agreed in the written subcontract to be bound by the terms of the Project Agreement, and (2) Marcum was signatory to the appropriate local collective bargaining agreement at the time that subcontract was executed. Alternatively, Turnkey contends that Article X is illegal and unenforceable as in violation of Section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e) (1976).

1. Legality of Article X

Article X of the Project Agreement does not violate Section 8(e) because it falls within the exception to Section 8(e) known as the “construction industry proviso.” Read literally, there would be no question the construction industry proviso exempts Article X from the proscription of Section 8(e). The Supreme Court, however, has limited application of the construction industry proviso to those subcontracting agreements that were sought or obtained in the context of a collective bargaining relationship even though they are otherwise covered by the plain language of the statute. Woelke & Romero Framing, Inc. v. National Labor Relations Board, et al., 456 U.S. 645, 653, 102 S.Ct. 2071, 2076, 72 L.Ed.2d 398, 406 (1982); Connell Construction Company, Inc. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975). Hence, the legality of Article X turns on whether or not that provision was negotiated in the context of a collective bargaining relationship.

Turnkey argues that the Project Agreement is similar to the agreement dealt with by the Court in Connell, and, therefore, is not the product of a collective bargaining relationship. The agreement in Connell illustrates the situation in which a single union enters into an agreement with a contractor who otherwise has no relationship with that union. In Connell, the union coerced the contractor into agreeing to a union signatory subcontractor clause. This clause was the only substantive provision in the agreement. The Court determined such an agreement was not the result of a collective bargaining relationship and, therefore, did not fall within the construction industry proviso. Connell, 421 U.S. at 635, 95 S.Ct. at 1841, 44 L.Ed.2d at 433; see Woelke & Romero Framing, Inc. v. National Labor Relations Board, 456 U.S. at 653, 102 S.Ct. at 2076, 72 L.Ed.2d at 406 and 407. Unlike the agreement in Connell, the Project Agreement was not entered into between a single union and a “stranger” contractor for the sole purpose of implementing a union subcontractor signatory clause. Rather, the Project Agreement was entered into between Turnkey, the general contractor on the project, and all the unions whose members would be working on that project. The negotiating relationship which produced the Project Agreement is clearly collective in the sense that the unions which would likely work on the project were represented in the same manner they are for negotiation of more traditional local collective bargaining agreements. The Project Agreement, by its terms, superseded any conflicting provisions in the general collective bargaining agreements (as to the signatories) for work on the Morrison Center project. Project Agreement, Article 11(3). Further, the Project Agreement includes provisions typically found in the more traditional collective bargaining agreements, e.g., hours of work, overtime shifts, wages, fringe benefits, working conditions, and a grievance procedure.

One of the primary purposes for the construction industry proviso is to alleviate the frictions that may arise when union men work continuously alongside non-union men at the same construction site. Connell, 421 U.S. at 630-31, 95 S.Ct. at 1838-39, 44 L.Ed.2d at 430-31. The Project Agreement, by its stated purpose, seeks to effectuate this policy. Project Agreement, Article I. The Project Agreement provided reciprocal benefits to all parties and sought to promote harmony on the job site. The Project Agreement appears to have been entered into in the standard collective bargaining relationship between general contractor and applicable unions. Rather than being “union specific” or “employer specific,” as are the more traditional collective bargaining agreements, the Project Agreement happens to be “job specific”; that is, it is tailored specifically for the Morrison Center project. The Project Agreement was designed to and does accomplish the same goals as would the more conventional collective bargaining agreement. The court concludes that the construction industry proviso to Section 8(e) is applicable and Article X of the Project Agreement, the union signatory subcontractor clause, is valid.

2. Breach of Article X

Defendant Turnkey next argues that Article X of the Project Agreement should be read literally. Under this view, Turnkey’s obligations under Article X were satisfied when Marcum agreed in the written subcontract, (1) to be bound by the terms of the Project Agreement and, (2) was signatory to a local collective bargaining agreement at the time it entered into the subcontract with Turnkey. Plaintiffs contend the literal interpretation advocated by Turnkey ignores the purpose of the Project Agreement. They assert Article X must be read as imposing a continuing obligation on Turnkey to ensure that its subcontractors and all sub-tier subcontractors (1) were in compliance with the terms of the Project Agreement and (2) continued to be signatory to the local collective bargaining agreements. Both parties advance their interpretation as being that which the parties intended at the time the Project Agreement was executed.

The Project Agreement, when read as a whole, makes it clear that the purpose of the agreement was simply to ensure that all crafts people employed on the Morrison Center project would be union crafts people. Literally, Article X requires only that Turnkey in the first instance, and each successive subcontractor, require their subcontractors to agree in writing to be bound by the terms of the Project Agreement. This means that each subcontractor would have a contractual obligation pursuant to Article V of the Project Agreement to employ only union personnel. The union, of course, is the third-party beneficiary of this contractual obligation. The existence of Article V is crucial because without it the last subcontractor in the chain would have no obligation to actually employ union personnel. The only distinction, therefore, between the literal interpretation of Article X and the “continuing obligation” theory asserted by the plaintiffs is that under the literal interpretation the unions would have a cause of action against only that subcontractor who (1) employs non-union personnel, or (2) fails to require his subcontractor to agree in writing to comply with the terms of the Project Agreement. Under the continuing obligation theory, the unions would have a cause of action against said subcontractor and every contractor in the chain up to Turnkey.

It is axiomatic that the union’s ability to ensure that all contractors on the project employ union personnel increased proportionately with the number of contractors who would be in breach of the Project Agreement if any one subcontractor employs non-union personnel. While the union may carry a bigger stick under the continuing obligation theory espoused by the plaintiffs, the fact is that the union does carry a stick, albeit a smaller one, under the literal interpretation of Article X. Both views, therefore, are consistent with the purpose of the Project Agreement— that is to ensure a union shop. Because the terms of Article X itself are not ambiguous and that provision is consistent with the purpose of the Project Agreement, the court is unable to consider extrinsic evidence in determining the parties’ intent. Laborers Health and Welfare Trust Fund v. Kaufman & Broad of Northern California, 707 F.2d 412, 418 (9th Cir.1983). As a result, the court is constrained to find the intent of the parties is that intent manifested by the literal language of Article X unless the policy considerations and rules of construction established by the federal courts for the interpretation of collective bargaining labor agreements dictate otherwise. Kemmis v. McGoldrick, 706 F.2d 993 (9th Cir.1983).

Plaintiffs cite Walsh v. Schlect, 429 U.S. 401, 97 S.Ct. 679, 50 L.Ed.2d 641 (1977), and subsequent Ninth Circuit decisions as supporting the proposition that union subcontractor signatory clauses similar to Article X should be interpreted to impose upon the general contractor a continuing obligation to ensure compliance by all subcontractors. See Painting and Decorating Contractors Association of Sacramento, Inc. v. Painters and Decorators Joint Committee of the East Bay Counties, Inc., 707 F.2d 1067 (1983), cert. denied, — U.S. —, 104 S.Ct. 1709, 80 L.Ed.2d 182 (1984); Brogan v. Swanson Painting Co., 682 F.2d 807 (9th Cir.1982); Seymour v. Hull & Moreland Engineering, 605 F.2d 1105 (9th Cir.1979). These cases are inapposite because they assume a breach of the union signatory subcontractor clause. The language used by the court in Brogan is illustrative: “[i]f the court did not require the employer to make trust fund payments upon a subcontractor’s default, the trustees ‘would have no remedy for defendant’s undisputed breach of contract.’ ” Brogan v. Swanson Painting Co., 682 F.2d at 809 (emphasis added). The opinions in those cases make it clear that the court was concerned with leaving the plaintiff unions and trust funds a right without a remedy. In this case, however, the question is whether the union has a right in the first instance. Hence, the Walsh line of cases do not support the proposition that the union should be able to recover from all contractors in the chain up to and including the general contractor Turnkey.

CONCLUSION

Article X of the Project Agreement requires only that Turnkey (and every contractor bound by the terms of the Project Agreement), (1) require its subcontractors to agree in writing to be bound by the terms of the Project Agreement and, (2) at the time of contracting, be signatory to a local bargaining agreement. This interpretation is consistent with the language of Article X, with the purpose of the Project Agreement, and with those policies underlying federal labor law. Based upon the foregoing, the Motion for Partial Summary Judgment of the Defendant Turnkey as to that portion of the Complaint alleging breach of Articles V and X of the Project Agreement should be granted. Conversely, Plaintiffs Pipe Trades and Trust Funds’ Motions for Partial Summary Judgment should be denied.

IT IS SO ORDERED.

      . Section 8(e) provides in part:
      It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from ... doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction____
      29 U.S.C. § 158(e).

      . Section 8(e) provides:
      [NJothing in this section (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction
      29 U.S.C. § 158(e).

      . Article V of the Project Agreement provides:
      It shall be a condition of employment that all employees of the Employers covered by this Agreement who are members of the Unions in good standing on the effective date of this Agreement shall remain members in good standing and those who are not members on the effective date of this Agreement shall, on the eighth day following the effective date of this Agreement, become and remain members in good standing in the Unions. It shall also be a condition of employment that all employees covered by this Agreement and hired on or after its effective date shall, on the eighth day following the beginning of such employment, become and remain members in good standing of the Unions.

      . It is not clear from the few cases addressing the issue whether or not the parole evidence rule remains a bar to the admission of extrinsic evidence in the interpretation of collective bargaining agreements. See Kemmis v. McGoldrick, 706 F.2d 993 (9th Cir.1983). The question, however, is not dispositive in this case. There is no evidence of the circumstances surrounding the negotiation and execution of the Project Agreement or of the parties’ subsequent conduct which sheds any light on the parties’ intent regarding the extent of the obligations imposed on Turnkey by Article X.

      . Seymour v. Hull & Moreland Engineering 605 F.2d 1105 (9th Cir.1979), presented a slightly different factual situation. The provision at issue in Seymour provided that the terms of the local agreement would be binding on and applicable to all work performed by subcontractors. It did not, however, affirmatively require the general contractor to bind his subcontractors to the local agreement. The court held that if the agreement is "applicable” to subcontractors’ work, then it is reasonable to infer that the employer must make contributions based upon the non-signatory subcontractor’s work. Unlike Article X of the Project Agreement, the provision in Seymour did not give the unions a cause of action against the subcontractor. Hence, the court reasoned that the provision would be ineffectual to achieve its obvious purpose unless the general contractor be held responsible for contributions for work performed by the non-signatory subcontractor.

      . For purposes of illustration, those cases would be persuasive authority for the proposition that Marcum is liable to the unions for the non-union work performed by Union Plumbing because Marcum failed to require Union Plumbing agree in writing to abide by the terms of the Project Agreement. Similarly, had Turnkey failed to require that Marcum agree in writing to abide by the terms of the Project Agreement, Turnkey would have been liable to the unions for any work performed by non-union personnel of Marcum or its subcontractors. However, such is not the case in this action.