Central Illinois Carpenters Health and Welfare Trust Fund et al v. George Weis Company
Filing
19
OPINION entered by Judge Richard Mills on 9/30/2015. The Plaintiffs' Motion for Summary Judgment, d/e 9 is DENIED. The Plaintiffs' Motion to Strike the Defendant's Response to the Summary Judgment Motion, d/e 12 is DENIED. The final pretrial conference set for 1/4/2016 at 2:00 p.m. is reset for 12/16/2015 at 2:00 p.m., at which time a firm trial date will be set. (MAS, ilcd)
E-FILED
Wednesday, 30 September, 2015 01:48:49 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CENTRAL ILLINOIS CARPENTERS )
HEALTH & WELFARE TRUST
)
FUND, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
GEORGE WEIS COMPANY,
)
)
Defendant.
)
NO. 13-3283
OPINION
RICHARD MILLS, U.S. District Judge:
This is a fringe benefit collection case pursuant to the Employee
Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C.
§ 1002(1), (3), 1132 and 1145. Pending is the Plaintiffs’ Motion for
Summary Judgment.
I. INTRODUCTION
The Plaintiffs conducted audits of the Defendant from October 1,
2009 to June 30, 2011. Defendant George Weis Company claims it had
a signed Collective Bargaining Agreement (CBA) only with the St. Louis
Union which covers St. Louis, Missouri and Southern Illinois, not with the
Mid-Central Region or Local 725. It contends the audit in question in this
case is for projects done within the geographical territory of Local 725. The
Plaintiffs disagree and seek the entry of summary judgment and an award
of $51,591.73, as well as their attorney’s fees and costs, as provided by
ERISA.
II. FACTUAL BACKGROUND
(A)
Plaintiffs Central Illinois Carpenters Health and Welfare Trust Fund
(“Welfare Fund”), Carpenters Pension Fund of Illinois (“Pension Fund”)
and Carpenters Retirement Savings Fund of Illinois (“Retirement Savings
Fund”) are employee benefit plans and multi-employer plans within the
meaning of Sections 3(1) and (3), 502 and 515 of ERISA.
The Welfare Fund maintains its place of business in Lincoln, Illinois.
The Pension Fund and Retirement Savings Fund maintain their places of
business in Geneva, Illinois.
The Pension and Retirement Savings Funds have been authorized to
2
act as an agent in the collection of contributions due to Plaintiffs MidCentral Illinois Regional Council of Carpenters – Joint Apprenticeship &
Training Committee (“Training Fund”); Mid-Central Illinois Regional
Council of Carpenters, Central Illinois Builders, Carpenters International
Training Fund, Carpenters Labor Management Education & Development
Fund (“Development Fund”); Mid-Central Illinois Regional Council of
Carpenters Promotions Fund (“Promotions Fund”); Mid-Central Illinois
Joint Labor Management Substance Abuse Testing & Assistance Fund
(“Substance Abuse Fund”); and Carpenters Local 270 (“Local 270").
Mike Weis, the Defendant’s Vice President, has been a Trustee of the
Pension Fund for at least ten years. The Defendant has had a CBA with
the St. Louis District Council, or its predecessor in Illinois, for at least 40
years.
Until June of 1999, the Defendant had an “International Agreement”
with the United Brotherhood of Carpenters and Joiners of America
(“UBC”). The Defendant did not renew (or terminated) the “International
Agreement” in 1999.
3
The Plaintiffs allege Mike Weis signed a Participation Agreement with
the Mid-Central Illinois District Council of Carpenters Health, Welfare and
Pension Funds (“MCIRCC”) on or about September 3, 1992.
The
Defendant alleges the 1992 Participation Agreement was with the Geneva
Welfare and Pension Funds which were disbanded after 1992. The exhibit
attached to the Plaintiffs’ Motion establishes that the Participation
Agreement was with the MCIRCC. The Plaintiffs state the entity’s name
was changed in 2002, though the legal entity is the same. Regardless of the
dispute over the name, the Defendant asserts it terminated the
Participation Agreement on June 10, 1998.
Mike Weis does not recall ever having been asked to sign a CBA with
the MCIRCC. A Participation Agreement dated September 3, 1992 bears
the signature of someone purporting to be Michael Weis, Vice President,
as employer representative for George Weis Co. The entity listed at the top
of the document is “Mid-Central Illinois District Council of Carpenters
Health, Welfare and Pension Trust Funds (Trust Funds).” The Defendant
further asserts it never signed a CBA with Mid-Central Region or Local 725
4
or its replacement, Local 270.
The Plaintiffs allege the Defendant sent a letter to “Health/Welfare
– Pension Carpenters H&W Pension Fund” on June 10, 1998.
The
Defendant alleges the letter was sent to the Geneva Pension and Welfare
Funds, which were subsequently disbanded. The June 10, 1998 letter
states, “George Weis Company has terminated the existing collective
bargaining agreement with the Union effective July 31, 1998 under which
contributions were made to the Fund.” The Plaintiffs allege the purpose
for sending the June 10, 1998 letter was to terminate the Participation
Agreement. The Defendant contends it was to terminate the Participation
Agreement with the Geneva Pension and Welfare Funds even though,
according to the Plaintiffs, the name was not changed until 2002.
The Defendant has employed members from MCIRCC on projects
within the jurisdiction of MCIRCC. The Plaintiffs note that Weis testified,
when the Defendant needs employees from MCIRCC locals, “our foreman
on the job usually calls the union hall that he’s going to start work on a
certain project within that jurisdiction.” The Defendant asserts the above
5
quote is incomplete. The Defendant first contacted, in 2004 and in 2009,
the business representative for Local 725, the Trustee for the Pension Fund
and the former Trustee for the Geneva Welfare Funds, Scott Snow, who
instructed the Defendant to pay fringe benefits and wages for the members
of the St. Louis Union at the St. Louis Union CBA rates and to pay fringe
benefits and wages for the Defendant’s employees who were members of
Local 725 at the rate specified in the Mid-Central CBA. The fringe benefits
for the St. Louis Union members were to be paid directly to the St. Louis
Union and its funds. Mike Weis testified, “Mid-Central always asks us to
have one of their own people from Mid-Central, one of their members to
work alongside ours.”
The Plaintiffs allege that Defendant knows the correct wage and
benefit rates on the basis of a “scope letter” which “would have been sent
to us which designates the wage rates and contributions which was then
likely sent to us by Mid-Central, their district office.” Moreover, the
Defendant paid contributions to the Plaintiff Funds and MCIRCC on the
“basis of” the “Scope Letter,” which “designates the wages and
6
contributions” to be paid. The Defendant partially disputes the foregoing
assertions and states that fringe benefits for members of the St. Louis
Union working within the jurisdiction of Mid-Central Region were paid on
the basis of Scott Snow’s letter of May 12, 2004, his conversation with
Karin Ireland and Ronald Mense during 2009 and Mense’s Memorandum
of his 2009 conversation with Snow. Ronald Mense was the Defendant’s
carpenter foreman. Karin Ireland was its payroll clerk.
Mike Weis testified that at a minimum, the Defendant performed
work on a Jack in the Box in Litchfield in 2004, on a hospital in Carlinville
in 2009 and on a hospital in Carlinville in approximately 2011. Although
not directly relevant to the audit at issue between October 1, 2009 and
June 30, 2011, the Defendant had a project in Hillsboro, Illinois in 2013
and 2014. Weis further testified that Defendant paid contributions after
the purported attempts to terminate a CBA and/or Participation Agreement
in 1998.
The Defendant paid contributions to the Welfare Fund, Pension Fund
and Retirement Savings Fund between the purported termination in June
7
of 1998 and February of 2012, when the Defendant sent a second letter
intending to terminate the CBA and/or participation agreement.
The
Defendant paid contributions to the Welfare Fund, Pension Fund and
Retirement Savings Fund and dues during the period covered by the audit.
The Defendant has reported and paid contributions to the Welfare Fund,
Pension Fund and Retirement Savings Fund as recently as January of 2014.
(B)
Scott Snow, the Union Business Agent at the time, sent a fax to the
Defendant on or about May 12, 2014 including a Wage Addendum,
remittance report and “Dues Check Off Only” form. The Defendant alleges
Snow also had a telephone conversation with Karen Ireland at that time
instructing the Defendant to pay fringe benefits directly to the St. Louis
Union and its funds, for its employees who were members of the St. Louis
Union at the rates specified in the St. Louis CBA. The “Dues Check Off
Only” form was only to be used to report the Defendant’s St. Louis
employees.
The Defendant paid dues on behalf of St. Louis employees performing
8
work in the MCIRCC jurisdiction. The Defendant alleges that Plaintiffs are
attempting to overcharge the Defendant $2,296.61 for the dues it has
already paid Local 725 for members of the St. Louis Union for the period
from 2009 to 2011.
The Defendant contacted Local 725 “and asked them for the wage
addendum . . . which spells out the rates, benefits, and so on how their
carpenters got paid and what amounts they’re supposed to be paid.” The
Defendant claims it asked Scott Snow how the fringe benefit rates were to
be determined and to whom the fringe benefits were to be paid for
employees who were members of the St. Louis Union and members of Local
725, Mid-Central Region. Mike Weis testified that his understanding,
based upon the May 12, 2004 fax, was “that the St. Louis Carpenter
District Council employees were to be paid at the same rate as their home
fund, as the St. Louis District Council Collective Bargaining Agreement,
with the exception that union dues were supposed to be paid into the MidCentral District Council.” Weis did not have a conversation with Snow
regarding the meaning of the fax.
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Scott Snow never received anything from the Defendant in 2004
disputing the existence of a CBA. The Defendant claims this is because it
had no obligation to inform Snow of the non-existing CBAs.
The Defendant states the May 12, 2004 fax applied to the Jack-inthe-Box Project, which also took place in the Mid-Central jurisdiction. The
Defendant further asserts that in 2009, Scott Snow instructed the
Defendant to use the same arrangement and to pay as it normally would
the St. Louis Union for its employees who are members of the St. Louis
Union for work on the Carlinville Hospital Project.
The Plaintiffs audited the Defendant’s records for the time periods of
October 1, 2009 through June 30, 2011, in order to determine whether the
Defendant was in compliance with its obligations to make payments of all
contributions required under the CBA. The Defendant disputes that the
purpose was to determine its compliance. It contends there was no CBA or
Trust Agreement between the Defendant and Local 725 or with MidCentral Region or with any of the Plaintiff funds.
The hours reported in a document entitled “Revised Statement of
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Additional Hours Due for George Weis Company on Behalf of the Geneva
Pension and Retirement Savings Funds of Illinois for the Period of October
1, 2009 through June 30, 2011" (“Pension and Retirement Savings Fund
Audit Report”) and a “Revised Statement of Additional Hours Due for
George Weis Company on Behalf of the Central Illinois Carpenters Health
& Welfare Fund Trust Fund” (“Welfare Fund Audit Report”) over the same
period are both correct. The Defendant claims it paid all fringe benefits for
those hours at the rates specified in the St. Louis Union CBA, and the
Plaintiffs are attempting to overcharge it based on a CBA that Defendant
did not sign.
The Welfare Fund Audit Report shows $23,596.28 in liability due to
the Welfare Fund and certain other funds on behalf of which the Welfare
Fund acts as collection agent, comprised of $14,875.92 in contributions
due; $4,658.72 in interest; $2,975.25 in Liquidated Damages; and
$1,086.39 in total examination costs. The Pension and Retirement Savings
Fund Audit Report resulted in a finding of a combined $18,607.53 due in
contributions; $6,440.76 due in interest; $1,860.76 due in Liquidated
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Damages; and $1,086.40 due in total examination costs, for a total due of
$27,995.45. The Defendant disputes the correctness of both audits.
The Plaintiffs allege that the sole basis of the Defendant’s dispute as
to the audit liability was that “Scott Snow amend[ed] their agreement
[meaning the Mid-Central Agreement. . .].” However, the Defendant
asserts there are other reasons for its dispute, including its claim that it did
not sign any CBA with the Mid-Central Region or Local 725 or Local 270.
Scott Snow testified that the rate paid “. . . would have to be the
same, as the addendum says, for everybody.” Snow also testified that he
could not dispute the testimony of Karen Ireland and Ronald Mense and
he could not recall the contents in the memorandum Ronald Mense
prepared with respect to the 2009 conversation at the beginning of the
Carlinville Hospital Project. He was unable to recall the particulars of those
conversations.
The Wage Addendum provided with the May 12, 2004 fax purports
to cover “all Carpenter work performed in the jurisdiction of Local 725.”
It also instructed that all benefits on the two regular company employees
12
be reported back to their home fringe benefit funds, but dues for the St.
Louis Union members are to be paid to Local 725. Scott Snow testified
that the phrase “which covers all Carpenter work” referred to the Wage
Addendum, report forms and the “Dues Check Off Only” report.
The Plaintiffs allege the “Carpenters Welfare, Pension and Retirement
Savings Funds of Illinois” Remittance Report provided with the May 12,
2004 fax contains the following language in a box at the top of the page:
The undersigned employer, if not already a signator [sic],
hereby becomes a signatory party to the currently applicable
collective bargaining agreement with the District Council or
Local of the Union covering the type and area of work of the
listed employees and also to each agreement and Declaration of
Trust, and amendments, establishing the fund for which
payment is made herewith.
The Defendant claims that the form on which the above language appears
was to be used only for reporting fringe benefits for the employees who are
members of Local 725. A similar paragraph does not appear on the form
for the Defendant to report the dues payments for its employees who are
members of the St. Louis Union. Moreover, the form containing the above
language was signed only by Karen Ireland, who is a payroll clerk and does
13
not have authority to enter into any agreements or collective bargaining
agreements on behalf of the Defendant.
The Plaintiffs allege it was “not within [Scott Snow’s] power” to
modify the rates at which employers are required to contribute to the
Funds. The Defendant disputes this statement as argumentative because
it assumes there was a CBA requiring the Defendant to pay fringe benefits
for its employees who are members of the St. Louis Union at the rate
specified in the Mid-Central Region CBA, which the Defendant did not
sign. There was no CBA to modify.
Although the Plaintiffs allege that Scott Snow never told a contractor
he or she could pay less than the established MCIRCC rates for work
performed in the jurisdiction of MCIRCC, the Defendant disputes the
allegations based on the statements of Michael Weis, Ronald Mense and
Karen Ireland and the testimony of Scott Snow, wherein Snow stated he
could not recall the specifics of those conversations.
Mike Weis could not identify language in the May 12, 2004 fax
stating that “St. Louis rates are to be paid” to St. Louis employees when
14
they work in the Mid-Central jurisdiction. Weis stated, “I guess Scott kind
of insinuated that those people we pay according to their - - the St. Louis
collective bargaining agreement, and their members would be paid
according to his agreement.” When asked if he ever followed up with Scott
Snow regarding the rates for St. Louis employees, Weis testified that he did
not know of any “specific conversation.”
The Plaintiffs allege that in an August 21, 2012 letter, Mike Weis
admitted “[a]s a Trustee of the Fund I can logically see” that Scott Snow
could not amend the CBA. The Defendant disputes this allegation and
claims the letter was part of settlement negotiations. It further asserts there
was no CBA for Scott Snow to change because the Defendant did not enter
in to a CBA with Mid-Central Region or Local 725 or Local 270 and its
agreement with the International Union terminated in 1999. Additionally,
the Defendant’s only CBA for the period covered by the audit is its CBA
with the St. Louis Union and the Defendant paid fringe benefits for its
employees who were members of the St. Louis Union at the rates specified
in the St. Louis CBA to the St. Louis Union and its funds pursuant to oral
15
and written instructions from Snow.
(C)
The Plaintiffs have moved for summary judgment. The only issue is
whether the Defendant is obligated to pay contributions to the Plaintiff
Funds on behalf of its St. Louis employees who were employed for the
Carlinville Hospital Project at rates specified in the Mid-Central CBA (in
the geographic territory of Local 725, where the work was performed),
instead of the St. Louis Union CBA.
The Plaintiffs assert the Defendant must make contributions on
behalf of its St. Louis employees at the applicable MCIRCC rates when
employees work in the Mid-Central’s jurisdiction. Based on the revised
audits conducted for the period of October 1, 2009 through June 30, 2011,
the Plaintiffs are seeking an award of $51,591.73 in contributions due,
interest, liquidated damages and audit costs, and for $28,098.16 in their
attorney’s fees and costs.
The Defendant claims that Scott Snow, the Business Representative
for Local 725, advised its representatives that the same arrangement that
16
was used with respect to the Jack-in-the-Box Project in May of 2004 should
be used in 2009 for the Carlinville Hospital Project. Defendant George
Weis Company states it made payments directly to the St. Louis Union and
its funds in 2004 and between October 1, 2009 to June 30, 2011. The
Defendant contends that summary judgment should be denied because, at
the very least, there are genuine issues of material fact on this issue.
III. DISCUSSION
A. Legal standard
Summary judgment is appropriate if the motion is properly supported
and “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The
Court construes all inferences in favor of the non-movant. See Siliven v.
Indiana Dept. of Child Services, 635 F.3d 921, 925 (7th Cir. 2011). To
create a genuine factual dispute, however, any such inference must be based
on something more than “speculation or conjecture.” See Harper v. C.R.
England, Inc., 687 F.3d 297, 306 (7th Cir. 2012) (citation omitted).
Because summary judgment “is the put up or shut up moment in a lawsuit,”
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a “hunch” about the opposing party’s motives is not enough to withstand
a properly supported motion. See Springer v. Durflinger, 518 F.3d 479,
484 (7th Cir. 2008). Ultimately, there must be enough evidence in favor
of the non-movant to permit a jury to return a verdict in its favor. See id.
B. Requirements of ERISA
Section 515 of ERISA provides:
Every employer who is obligated to make contributions to a
multiemployer plan under the terms of the plan or under the
terms of a collectively bargained agreement shall, to the extent
not inconsistent with law, make such contributions in
accordance with the terms and conditions of such plan or such
agreement.
29 U.S.C. § 1145. Section 402(a)(1) provides in part: “Every employee
benefit plan shall be established and maintained pursuant to a written
instrument.” 29 U.S.C. § 1102(a)(1).
Although § 515 of ERISA refers to “the plan” or a “collectively
bargained agreement,” the obligation to contribute does not “depend on the
existence of a valid collective bargaining agreement.” See Central States,
Southeast and Southwest Areas Pension Fund v. Gerber Truck Service, Inc.,
870 F.2d 1148, 1153 (7th Cir. 1989). “As long as the agreement is
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written,” it does not need to follow the usual formalities. See Line Const.
Ben. Fund v. Allied Elec. Contractors, Inc., 591 F.3d 576, 581 (7th Cir.
2010). Even an unsigned agreement can be enough to bind the employer,
as long as its terms are sufficiently detailed. See id.
C. Nature of Agreements and whether there was termination
(1)
Mike Weis signed a Participation Agreement in September of 1992
with Mid-Central Illinois District Council of Carpenters Health, Welfare
and Pension Trust Funds. It provided:
WHEREAS, the undersigned Employer agrees to make
required hourly contributions to applicable Trust Funds for the
purpose of providing health, welfare and pension benefits for
eligible Employees and their dependents, and to continue
making such contributions while employing Employees
performing work of a carpenter in the geographical area under
the jurisdiction of the Mid-Central Illinois Council of
Carpenters.
NOW THEREFORE, for and in consideration of benefits
to be derived and other good and valuable considerations,
receipt, which is hereby acknowledged, the undersigned
Employer hereby (1) subscribes to all applicable provisions of all
Trust Funds in affect at this time within the geographical
jurisdiction of the Mid-Central Illinois District Council of
Carpenters, and agrees to be bound thereby, and by any
19
amendments thereto; (2) authorizes said parties to name
Trustees and successor Trustees to administer the Trust Fund;
(3) agrees to be bound by the rules and regulations adopted by
the Trustees; and (4) accepts the Welfare and Pension Plan
adopted by the Trustees for eligible Employees.
The Defendant did not sign a CBA with the Mid-Central Region, Local 725
or its replacement, Local 270, at any time. In June of 1998, Mike Weis
sent a letter to the Carpenters Health & Welfare Pension Fund in Geneva,
Illinois, purporting to terminate the Participation Agreement effective on
July 31, 1998. A copy of the notice was sent to the Federal Mediation and
Conciliation Service.
The Plaintiffs allege that the Defendant’s purported termination of
the Participation Agreement did not comply with the explicit terms of 29
U.S.C. § 158(d). Because § 158(d) applies to employers, employees and
labor organizations and not to employee benefit plans and multi-employer
plans within the meaning of the applicable provisions of ERISA, however,
§ 158(d) does not provide the appropriate procedure for terminating a
Participation Agreement.
The question thus becomes what steps are necessary in order to
20
terminate a participation agreement. The Plaintiffs cite cases which hold
that the particular language of the agreement governs how it can be
terminated. The Participation Agreement here does not contain any such
language. Accordingly, the Plaintiffs contend that it cannot be terminated
and, pursuant to the Participation Agreement, the Defendant is obligated
“to continue making such contributions while employing Employees
performing work of a carpenter in the geographical area under the
jurisdiction of the Mid-Central Illinois District Council of Carpenters.”
Although that is a plausible interpretation of the Participation Agreement,
the Court concludes it could also be argued that even though it does not
specifically address termination, the Participation Agreement still might be
terminated by sending a letter expressing an intent to terminate.
Additionally, while it is true that the language of the Participation
Agreement does not specifically address how or if it can be terminated, it
also does not explicitly provide that Defendant is obligated to pay fringe
benefit contributions for employees who are members of the St. Louis
Union at the rates specified in the Mid-Central CBA. It is plausible that
21
the Agreement does not account for every contingency. The Court
concludes there is a factual dispute regarding whether the Defendant’s
purported termination was effective.
(2)
The Plaintiffs further state that the Remittance Report provided to
the Defendant in a May 12, 2004 fax includes language binding the
Defendant to both “the currently applicable collective bargaining
agreement” and “to each agreement and Declaration of Trust, and
amendments establishing the funds for which payment is made herewith.”
Additionally the Remittance Reports, which were submitted by the
Defendant to the Pension and Retirement Savings Fund throughout the
period of the audits, contain the same language. The Plaintiffs contend the
Participation Agreement is not terminable and, even if it was, the
Defendant has continued to renew the Participation Agreement and has
adopted the Mid-Central CBA any time it has employed carpenters in the
applicable geographic area. The Plaintiffs thus allege the Defendant should
be estopped from denying it is a signatory contractor with MCIRCC and,
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as a result, is obligated to pay fringe benefit contributions to the Plaintiff
Funds due on behalf of all employees working in the jurisdiction.
The Defendant states that, in addition to the 1998 letter terminating
the Participation Agreement, Scott Snow testified that the Geneva Welfare
and Pension Plans that existed in 1992 were disbanded. The Geneva
Welfare and Pension Funds have never complained about the termination.
Moreover, according to Ronald Mense’s Affidavit, Scott Snow in 2009
instructed the Defendant to pay dues, wages and fringe benefits in the same
fashion as it had in the past–it would pay dues for the St. Louis members
to the Mid-Central Union and would pay fringe benefits at the St. Louis
rate, for the St. Louis Union members, directly to the St. Louis Union and
its funds. The Defendant claims that a computer program requires the
Defendant to pay at the St. Louis CBA rates.
Scott Snow, the Union Business Manager, testified he could not
dispute Mense’s account as to how the payments were to be made.
Additionally, Snow stated he could not dispute Karen Ireland’s testimony
that he instructed her to make the payments for the St. Louis Union
23
members directly to the St. Louis Union and its funds in the same fashion
that had been done before which, according to Ireland’s affidavit, was that
wages and fringe benefits for employees who were members of the St. Louis
Union would be paid pursuant to the terms of the St. Louis CBA. The
Defendant states it has complied with that direction by paying the rates for
the St. Louis Union members at the rate specified in the St. Louis CBA.
The Plaintiffs further assert that the Scope Letters were “Written
Agreements” which would have designated the wage rates and
contributions. These would have been the applicable MCIRCC rates. Mike
Weis testified such a letter designating the wage rates and contributions
would likely have been sent by Mid-Central, the district office. The MidCentral CBA requires employers to:
pay all fringe benefits and check offs and deductions on all
Employees into the respective Fringe Benefit Funds in the
jurisdiction of each Local Union within the Regional Council in
which the Employer has been working.
The Plaintiffs contend there is no distinction between the Defendant’s
employees under the Mid-Central CBA and no mechanism for the
Defendant to bring employees in from another area and pay anything other
24
than the applicable CBA rates. The Defendant contends that, as with the
Jack-in-the-Box project in 2004, it did as it was directed between 2009 and
2011 by paying the rates specified in the St. Louis Union CBA.
Although Scott Snow testified the rates would have to be the same for
“everybody” and that he was not authorized to modify the rates at which
employers were required to contribute, Snow also stated that he could not
dispute differing accounts regarding the uniformity of rates. The Plaintiffs
question the Defendant’s position that if there was no CBA, as Mike Weis’s
June 12, 2012 letter suggests, then it is unclear what the Defendant means
by alleging that Scott Snow amended the agreement in a May 12, 2004 and
verbally to two different employees. The Defendant claims there are at
minimum disputed facts as to both issues–whether the Participation
Agreement was terminated and whether the rates at which the Defendant
was directed to pay fringe benefits for St. Louis Union members.
The Defendant further alleges that it paid fringe benefits for its
employees who were members of the St. Louis Union for the Jack-in-theBox Project which began in 2004, at the rates specified in the St. Louis
25
CBA.
(3)
The testimony of Scott Snow that he was not authorized to modify
the rates at which employers were required to contribute is persuasive. It
might be surprising if a union business agent had such authority.
Additionally, Snow’s testimony that the rates would have to be the same for
“everybody” seems logical and persuasive.
Based on the record, however, the Court concludes there are factual
disputes. Given the accounts of Ronald Mense and Karen Ireland and the
testimony of Scott Snow, there is a factual issue as to the appropriate fringe
benefit rates for members of the St. Louis Union. Additionally, if in 2004
the Defendant made fringe benefit payments for its employees who were
members of the St. Louis Union for the Jack-in-the-Box Project at the rates
specified in the St. Louis Union CBA and, if the Defendant’s representative
was told in 2009 to make the payments in the same manner, then there is
a factual dispute regarding whether the Defendant made the “contributions
in accordance with the terms and conditions of such plan or such
26
agreement,” pursuant to § 515 of ERISA.
Based on the foregoing, the Court concludes there are factual disputes
which preclude the entry of summary judgment in favor of the Plaintiffs.
Ergo, the Plaintiffs’ Motion for Summary Judgment [d/e 9] is
DENIED.
The Plaintiffs’ Motion to Strike the Defendant’s Response to the
Summary Judgment Motion [d/e 12] is DENIED.
The final pretrial conference set for January 4, 2016 at 2:00 p.m. is
reset for December 16, 2015 at 2:00 p.m., at which time a firm trial date
will be set.
ENTER: September 30, 2015
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge
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