Pace Industry Union-Management Pension Fund et al v. Robert Wood Johnson University Hospital

Filing 68

ORDER granting in part and denying in part 40 Motion for Partial Summary Judgment; granting in part and denying in part 41 Motion for Summary Judgment; denying as moot 67 Motion to modify scheduling order. Signed by Judge Marvin E. Aspen on 6/12/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PACE INDUSTRY UNION-MANAGEMENT
PENSION FUND and BOARD OF
TRUSTEES OF THE PACE INDUSTRY
UNION-MANAGEMENT PENSION FUND,
Plaintiffs,
v.
ROBERT WOOD JOHNSON UNIVERSITY
HOSPITAL,
Defendant.

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3:15 C 01032
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
The plaintiff pension fund, Pace Industry Union-Management Pension Fund and the
Board of Trustees of the Pace Industry Union-Management Pension Fund (collectively
“Plaintiff”) alleges Defendant Robert Wood Johnson University Hospital (“RWJUH” or
“Defendant”) has failed to meet its contractual and statutory obligations under Section 515 of the
Employee Retirement Income Security Act (“ERISA”) to make pension contributions to the Pace
Industry Union-Management Pension Fund (“PIUMPF” or “the Fund”), a multiemployer pension
plan that provides retirement benefits. Currently pending are the parties’ cross motions for
summary judgment. (Dkt. Nos. 40, 41.) Also pending is a joint motion to modify the scheduling
order to extend the trial date and pretrial deadlines. (Dkt. No. 67.) Plaintiff’s partial motion for
summary judgment seeks judgment as a matter of law as to its claim for delinquent contributions
involving several classes of nurses. Defendant’s motion argues Plaintiff’s one-count complaint
should be dismissed in its entirety because Plaintiff has failed to put forth sufficient evidence to

prove that RWJUH failed to make pension contributions on behalf of any nurses in violation of
ERISA. For the reasons that follow, both summary judgment motions are granted in part and
denied in part. The motion to modify is denied as moot.
BACKGROUND
Unless otherwise stated, the facts described herein are undisputed and culled from the
parties’ Local Rule 56.01 submissions. (See Pl.’s SOF (Dkt. No. 51); Def.’s SOF (Dkt. No. 44).)
The Fund is a jointly trusteed multi-employer pension fund created and overseen by
union-appointed and employer-appointed trustees. (Pl.’s SOF ¶ 1.) The Fund is governed by the
Plan Document (which details its responsibility to pay pension benefits) and the Declaration of
Trust (to which each participating employer is a party and which outlines the powers and duties
of the trustees and the obligations of the participating employers). (Id. ¶¶ 6–7, 9.) Participating
employers’ contributions to PIUMPF are pooled in a general fund available to pay any benefit
obligation of the plan. (Id. ¶¶ 1–2.) The purpose of the Fund is to provide pension and other
benefits to employees in covered employment. (Id. ¶ 7.) The Fund is solely responsible for
payment of pension benefits to participants, regardless of whether it receives required
contributions from employers for those participants. (Id. ¶¶ 2, 8.)
RWJUH is an acute care facility in New Brunswick, New Jersey that at all times relevant
was part of the Robert Wood Johnson Health System. (Def.’s SOF ¶¶ 4–5.) From 2003 to 2012,
RWJUH was party to a series of collective bargaining agreements (“CBAs”) with the local union
representing its registered nurses. (Pl.’s SOF ¶¶ 17–19.) It began contributing to PIUMPF in
October 2003 after RWJUH and the union entered into a CBA effective June 29, 2003 to
June 30, 2006 (“2003–2006 CBA”). (Def.’s SOF ¶ 6.) The 2003–2006 CBA provided that
RWJUH “agrees to contribute $1.00 per hour per employee to PACE Pension ‘Plan A’ for the

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life of the Agreement consistent with the terms of the Standard Form of Agreement of the PACE
Industry Union-Management Pension Fund.” (Pl.’s SOF ¶¶ 27–28; Def.’s SOF ¶ 7; see also
2003–2006 CBA (Dkt. No. 48–5) at Art. 16.) RWJUH and the union executed a successor
agreement effective September 2006 to June 30, 2009 (“2006–2009 CBA”), and thereafter
executed another CBA effective July 1, 2009 to June 30, 2012 (“2009–2012 CBA”).
(Def.’s SOF ¶¶ 13, 19.) RWJUH’s contribution obligation remained the same in each
subsequent CBA, except the negotiated contribution rate increased under each successive CBA.
(Pl.’s SOF ¶¶ 28–30.)
Each CBA provided that RWJUH agreed to abide by the terms of a Standard Form of
Agreement (“SFA”) between RWJUH and the Fund. (Id.) The SFAs provide that the employer
agrees to become a party to the Fund and the Trust Agreement and detail the employers’
contribution obligations. (Id. ¶¶ 35, 41–44.) All contributing employers are subject to the same
SFA terms, except for the applicable dates and contribution rates, which vary depending on the
employer’s pension program and benefit levels offered. (Id. ¶ 10.) Section I of the SFAs in
effect from 2003–2006 and from 2006–2009 provides:
Commencing with the day stated below the undersigned Employer: 1) if subject to
a collective bargaining agreement with the undersigned Union (“collective
bargaining
agreement”)
agrees
to
pay
the
PACE
INDUSTRY
UNION-MANAGEMENT PENSION FUND (hereinafter called the Fund) the
amount stated below for each compensable hour, outlined below, for employees
subject to the collective bargaining agreement.
(Def.’s SOF ¶¶ 8, 15; 2003–2006 SFA (Dkt. No. 48–6) at Section I; 2006–2009 SFA
(Dkt. No. 48–9) (same).) The “compensable hours that payment to the Fund shall be based”
upon include, among other things, “[a]ll hours worked, including overtime,” and “[a]ll hours
called for under the collective bargaining agreement, but no less than eight (8) hours per day for
each holiday not worked.” (Id.) Section I further states:
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Language in the collective bargaining agreement to the contrary notwithstanding,
the Employer shall contribute on all individuals performing work covered by the
collective bargaining agreement, including probationary, temporary, and part-time
employees, except for those newly hired individuals in the employ of the Employer
for a period of less than sixty (60) calendar days, regardless of the number of days
or hours actually worked by the individual during the sixty (60) day period.
(Def.’s SOF ¶¶ 9, 16; 2003–2006 SFA at 1; 2006–2009 SFA at 1.)
The 2003 and 2006 CBAs defined the “bargaining unit” as:
all full-time and regular part-time registered nurses and graduate nurses employed
by Robert Wood Johnson Hospital at its New Brunswick location, including those
registered nurses and graduate nurses employed as registered nurse first assistants,
staff nurses, in-service education instructors, infection control nurses, utilization
review nurses, community health nurses, urology clinical coordinator, home trainer
coordinators (dialysis), home trainers renal dialysis, field service worker/discharge
planning nurses, Sr. discharge planners, discharge planning nurses, assistant head
nurses-operating room, scoliosis program coordinators, program coordinators,
Pediatric Chronic Disease Program, Cardiac Catherization nurses, cardiac
rehabilitative nurses, specials procedures nurses, vascular laboratory nurses,
lithotripter nurse, oncology nurses and directors, directors of home care,
administrative supervisors, head nurses, assistant head nurses (except operating
room), all other professional employees other than registered nurses, technical
employees, guards and supervisors within the meaning of the Act and all other
employees.
(2003–2006 CBA at Art. 1.1; 2006–2009 CBA (Dkt. No. 48–8) (same).) The 2009–2012 CBA
differed slightly in that it added “and all positions considered bargaining unit [sic] as of
July 1, 2009” before the list of exclusions. (2009–2012 CBA (Dkt. No. 48–10) at Art. 1.1.)
Each CBA stated “[w]henever the terms ‘employee’ or employees’ are used hereinafter in this
Agreement, they shall be deemed to apply only to employees of the Hospital who are included
within the bargaining unit above described.” (2003–2006 CBA at Art. 1.2; 2006–2009 CBA
(same); 2009–2012 CBA (same).)
In 2007, RWJUH’s payroll for October 2003 to December 2005 was audited
(the “First Audit”) to “determine the accuracy of the hours reported on the remittance reports and
contributions paid by the Employer.” (Def.’s SOF ¶ 34.) The audit also examined “whether the
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Employer is in compliance with the Standard Form of Agreement between the Employer and
[PIUMPF].” (Id. ¶ 35.) The Fund regularly engages an independent accounting firm, Bond
Beebe, to audit contributing employers on a regular basis to ensure employers paid the correct
amount of contributions to the fund. (Pl.’s SOF ¶¶ 11–12.) Plaintiff alleges RWJUH calculated
its contributions by use of an automated process by which, for each bi-weekly pay period, it
generated a “PACE Defined Benefits Report” detailing contributions by employee job code.
(Id. ¶¶ 45–49.) Based on these records, the final First Audit Report concluded RWJUH failed to
contribute on behalf of several job classifications: Clinical Nursing Specialist, Nursing
Education Specialists, Clinical Educators of Operations, Diabetes Nurse Clinicians, and
Community Health Nurse. (Id. ¶¶ 80–82.)
The auditor completed a second audit report on June 12, 2008 for the period of
January 2006 to December 2007 (the “Second Audit”). (Id. ¶ 84.) As relevant here, the final
Second Audit Report concluded RWJUH failed to contribute for “on call” hours, “weekend per
diem” hours, and hours worked by “leased” nurses who were hired through staffing agencies and
who are not on RWJUH’s payroll. (Def.’s SOF ¶¶ 49–51.) Thereafter, a third audit report was
completed on February 18, 2014 (the “Third Audit”). (Pl.’s SOF ¶ 92.) The Third Audit
addressed RWJUH’s records covering the period from January 2008 to December 2011, and
from 2003 to 2012 for “leased” nurses. (Id.) The Third Audit Report alleged RWJUH owed
$859,483.78 in unpaid contributions for 2003 through 2012, including $162,525.31 related to
hours worked by leased nurses. (Def.’s SOF ¶ 58; Pl.’s SOF ¶¶ 93–99.)

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Plaintiff filed the instant complaint on September 25, 2015, 1 alleging RWJUH failed to
make pension contributions in violation of Section 515 of ERISA. Plaintiff alleges that audits of
benefits reports from 2003 to 2011 revealed RWJUH failed to remit payment for contributions
due and owing to the Fund totaling $859,483.78 in delinquent contributions. (Compl. ¶ 30.)
Plaintiff also alleges RWJUH is liable interest on those delinquent contributions, an amount it
claims totaled $824,066.06 as of June 30, 2015, as well as $103,355.45 in costs associated with
the audit for the final Third Audit Report. (Id.) Finally, Plaintiff contends it is entitled to
liquidated damages, interest, attorneys’ fees, and costs. (Id. ¶ 31.)
LEGAL STANDARD
Summary judgment is proper only when “there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law.” Fed R. Civ. P. 56(c). A
genuine issue for trial exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986). This standard places the initial burden on the moving party to
identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S. Ct. 2548, 2553 (1986) (internal quotations omitted). Once the moving party meets this
burden of production, the nonmoving party “may not rest upon the mere allegations or denials of
the adverse party’s pleading,” but rather “must set forth specific facts showing that there is a

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Plaintiff also filed an earlier lawsuit after the Second Audit was completed, alleging RWJUH
was indebted to the Fund in the amounts identified in the First and Second Audit Reports.
(Pl.’s SOF ¶ 86.) The parties reached a settlement of the claims on April 2, 2013. (Id. ¶ 87.)
They agreed to toll any statute of limitations and provided that either party could bring an action
in federal court to resolve the outstanding issues. (Id. ¶¶ 88–91.)
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genuine issue [of material fact] for trial.” Fed. R. Civ. P. 56(e). “Where the parties have filed
cross-motions for summary judgment, we ‘evaluate each motion on its own merits and view all
facts and inferences in the light more favorable to the nonmoving party.’” Bakery &
Confectionery Union & Indus. Int’l Health Benefits & Pension Funds v. New Bakery Co. of
Ohio, 133 F.3d 955, 958 (6th Cir. 1998) (quoting Wiley v. United States, 20 F.3d 222, 224
(6th Cir. 1994)). “The judge is not to ‘weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.’” Sagan v. United States,
342 F.3d 493, 497 (6th Cir. 2003) (quoting Liberty Lobby, 477 U.S. at 249, 106 S. Ct. at 2511).
ANALYSIS
“When collective-bargaining agreements create pension or welfare benefits plans, those
plans are subject to rules established in ERISA.” M & G Polymers USA, LLC v. Tackett,
–– U.S. ––, 135 S. Ct. 926, 933 (2015). Under Section 515 of ERISA, employers are obligated
to make contributions in accordance with an applicable collective bargaining agreement.
Brown-Graves Co. v. Cent. States, Se. and Sw. Areas Pension, 206 F.3d 680, 683 (6th Cir. 2000).
Section 515 provides,
[e]very 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. “Because, under [S]ection 515, multiemployer plans are entitled to rely on the
literal terms of written commitments between the plan, the employer, and the union, the actual
intent of and understandings between the contracting parties are immaterial.” New Bakery,
133 F.3d at 959; see also Operating Eng’rs Local 324 Health Care Plan v. G & W Const. Co.,
783 F.3d 1045, 1051 (6th Cir. 2015) (“[T]he multi-employer plans may rely on the literal terms
of written agreements between the employer and the union.”). Relying on the collective
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bargaining agreements and plans as written “serves the purpose of enabling beneficiaries to learn
their rights and obligations at any time,” and “lends certainty and predictability to employee
benefit plans.” Orrand v. Scassa Asphalt, Inc., 794 F.3d 556, 561 (6th Cir. 2015) (internal
quotations omitted); see also New Bakery, 133 F.3d at 959 (observing “Congress enacted
Section 515 in order to permit “trustees of plans to recover delinquent contributions
efficaciously, and without regard to issues which might arise under labor-management relations
law” (internal quotations omitted)). “The fund thus stands much like a holder in due course in
commercial law who is entitled to enforce the writing without regard to understandings or
defenses applicable to the original parties.” New Bakery, 133 F.3d at 959 (further explaining that
by “allowing multiemployer funds to enforce the literal terms of an employer’s commitment,
[S]ection 515 increases the reliability of their income streams, reduces the cost and delay
associated with collection actions, and reduces or eliminates the cost of monitoring the formation
of collective bargaining agreements” (internal quotations omitted)); accord. Nw. Ohio Adm’rs,
Inc. v. Walcher & Fox, Inc., 270 F.3d 1018, 1025 (6th Cir. 2001) (applying “the well-established
precedent that ERISA funds are accorded a special status and are entitled to enforce the
writing”).
Accordingly, we must “examine the plan documents and the collective bargaining
agreement to determine the scope of [the employer’s] obligation to contribute to the Pension
Fund.” New Bakery, 133 F.3d at 959. Collective-bargaining agreements are interpreted
according to ordinary principles of contract law, at least when those principles are not
inconsistent with federal labor policy. Tackett, 135 S. Ct. at 933; Orrand, 794 F.3d at 561.
“Where a contract is in writing and its terms are clear and unambiguous, we ascertain the
contract’s meaning in accordance with the contract’s plainly expressed intent.”

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Orrand, 794 F.3d at 562. Whether a contract term is ambiguous is a question of law for the court
to determine. Walcher & Fox, 270 F.3d at 1025. Each provision of the CBA is interpreted
“consistently with the entire document and the relative positions and purposes of the parties” in
order to “give full meaning and effect to all [plan documents’] text, avoiding constructions that
would render provisions illusory.” Moore v. Menasha Corp., 690 F.3d 444, 451 (6th Cir. 2012)
(quoting UAW v. Yard–Man, Inc., 716 F.2d 1476, 1480 (6th Cir. 1983)). “If, however, the plain
language is susceptible to more than one interpretation, we then consider extrinsic evidence to
supplement the parties’ intent.” Id. “If an examination of the available extrinsic evidence fails
to conclusively resolve the issue and a question of fact as to intent remains, then summary
judgment is improper.” Id. (quoting Noe v. PolyOne Corp., 520 F.3d 548, 552 (6th Cir. 2008));
accord. Parrett v. Am. Ship Bldg. Co., 990 F.2d 854, 858 (6th Cir. 1993) (“The existence of an
ambiguity is a matter of law; once language is held to be ambiguous, however, the interpretation
of such language is a factual issue turning on the parties’ intent.”).
Plaintiff and RWJUH dispute whether the hospital was required to contribute to the Fund
for hours worked by: (1) Case Managers; (2) per diem nurses; (3) leased nurses; (4) Nursing
Education Specialists/Nursing Education Associates, Clinical Nursing Specialists, Clinical
Educators of Operations, and Diabetes Nurse Clinicians; (5) Community Health Nurses;
and (6) Child Life Coordinators. We address the parties’ arguments with respect to each group
of nurses below.
I.

CASE MANAGERS
Plaintiff contends that RWJUH owes $42,550.75 in delinquent contributions for Case

Managers (job code PP338) from October 1, 2006 to September 30, 2007. (Pl.’s SOF ¶ 104(a).)
RWJUH admits that it did not contribute on behalf of Case Managers between October 1, 2006
and September 30, 2007. (Def’s Resp. to Pl.’s SOF (Dkt. No. 54) ¶¶ 74–77.) However, RWJUH
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denies that contributions were due on behalf of Case Managers, instead arguing the Fund was not
entitled to contributions for Case Managers until they were expressly incorporated into the CBA
for the first time on June 11, 2007. There is no dispute that contributions were not owed for
Case Managers under the 2003–2006 CBA as they were not part of the bargaining unit during
that period.
Case Managers were added to the 2006–2009 CBA pursuant to Appendix C, which set
forth the “terms and conditions of employment for the Case Managers who are part of the larger
bargaining unit of Registered Nurses.” (Pl.’s SOF ¶ 23.) RWJUH argues Appendix C was not
incorporated into the 2006–2009 CBA until June 11, 2007 pursuant to a Memorandum of
Agreement (“MOA”). (Def.’s Resp. to Pl.’s SOF ¶¶ 75–77, 104.) RWJUH contends that the
ratification date for Appendix C was not the same as the effective date for the CBA as a whole,
and the MOA therefore governs the commencement of its contribution obligation.
(Def.’s Resp. Br. (Dkt. No. 53) at 5.)
Article 34 of the 2006–2009 CBA provides that the “terms and conditions of employment
for the Case Managers who are a part of the larger bargaining unit of Registered Nurses are set
forth in the attached Appendix C.” (2006–2009 CBA at Art. 34.) Appendix C likewise states
that it “is intended to set forth the terms and conditions of employment for the Case Managers
who are part of the larger bargaining unit of Registered Nurses” and “[u]nless otherwise
indicated the provisions of the [CBA] apply to the Case Managers.” (2006–2009 CBA,
App’x C at 46.) In relevant part, Appendix C amended the Article 15 “Retirement Plan”
provision to state “[e]ffective the first day of the next calendar quarter following ratification of
this Agreement, the Hospital agrees to contribute $1.10 per hour per employee to PACE Pension
‘Plan A’ for the life of the Agreement consistent with the terms of the Standard Form of

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Agreement of the PACE Industry Union-Management Pension Fund.” (2006–2009 CBA,
App’x C at Art. 15.)
The 2006–2009 CBA became effective September 18, 2006. (Pl.’s SOF ¶ 25.) Plaintiff
argues that the language of Appendix C plainly provides that RWJUH was obligated to begin
making contributions for hours worked by Case Managers beginning October 1, 2006, which
was the start of the next calendar quarter after ratification. (Pl.’s Mem. ISO Partial Mot. for
Summ. J. (“Pl.’s Mem.”) (Dkt. No. 42) at 11.) However, RWJUH did not begin making
contributions for Case Managers until the next calendar quarter after it claims the MOA was
executed, or September 30, 2007. (Pl.’s SOF ¶¶ 54, 75–77.) Plaintiff also argues RWJUH’s
reliance on the MOA is misplaced because the MOA is inadmissible. (Pl.’s Reply (Dkt. No. 62)
at 6–10.) Plaintiff contends RWJUH failed to produce it in discovery and only disclosed it for
the first time in response to Plaintiff’s summary judgment motion. (Id.)
We do not consider the MOA because the plain language of the CBA compels the
conclusion that RWJUH was obligated to contribute on behalf of Case Managers starting
October 1, 2006. The reference to “this Agreement” in Article 15 of Appendix C plainly refers
not to the MOA, but to the CBA, which also references at the outset, “THIS AGREEMENT
made this 18th day of September, 2006.” (2006–2009 CBA at 1.) The CBA refers throughout to
the terms of “this Agreement.” (See, e.g., id. at Art. 35.1 (“This Agreement shall be in effect
from September 18, 2006 to June 30, 2009”); Art. 15 (“The Hospital agrees to contribute $1.10
per hour per employee to PACE Pension ‘Plan A’ for the life of the Agreement . . .”).) The
2006–2009 CBA itself also refers internally to Appendix C. Specifically, Article 34 in the body
of the 2006–2009 CBA is titled “Case Managers Registered Nurses” and provides, “[t]he terms
and conditions of employment for the Case Managers who are part of the larger bargaining unit

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of Registered Nurses are set forth in the attached Appendix C.” (2006–2009 CBA at Art. 34.)
Thus, it is contrary to the express terms of the CBA to read Appendix C as having been
incorporated, executed, and effective nearly a year after the rest of the CBA.
Because the CBA terms are clear and unambiguous, we enforce its plainly expressed
intent. Orrand, 794 F.3d at 562. The Fund is entitled to rely on the written commitments
between the employer and the union as the CBA language is clear. New Bakery, 133 F.3d at 959.
Extrinsic evidence cannot create a genuine dispute of material fact, and the fund administrators
are “not required to look into potential side agreements” or “read the minds of contracting
parties” where, as here, the contract language is unambiguous. Walcher & Fox,
270 F.3d at 1025. Moreover, the MOA cited by RWJUH differs from Appendix C to the CBA as
incorporated, and a pension fund need not search “on its own or through counsel, numerous
collective bargaining agreements for additional, different, or conflicting terms regarding
pensions.” New Bakery, 133 F.3d at 961; compare MOA (Dkt. No. 53–2) at PageID #: 1542–50,
with 2006–2009 CBA, App’x C at 72–80).
For the foregoing reasons, we find no genuine dispute of fact as to RWJUH’s obligation
to contribute on behalf of Case Managers (Job Code PP338) for the period October 1, 2006 to
September 30, 2007. Walcher & Fox, 270 F.3d at 1025. Pursuant to Article 34 of
the 2006–2009 CBA, Case Managers were “part of the larger bargaining unit of Registered
Nurses,” as of the date of execution on September 18, 2006. (2006–2009 CBA, Art. 34; see also
RWJUH’s Resp. to Requests to Admit (Dkt. No. 45–9) ¶¶ 4–6.) Aside from disputing the
meaning of the contract language, RWJUH admits that it did not begin making contributions for
Case Managers until the pay period beginning September 30, 2007. (Def.’s Resp. to
Pl.’s SOF ¶¶ 74–77, 104.) Because we find the CBA unambiguously obligated RWJUH to begin

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contributing on behalf of Case Managers “[e]ffective the first day of the next calendar quarter
following ratification of this Agreement,” the Fund is entitled to recover the delinquent Case
Manager contributions for the period from October 1, 2006 to September 30, 2007. Plaintiff’s
motion for summary judgment is therefore granted with respect to its claim for contributions
owed on behalf of Case Managers.
II.

PER DIEM NURSES
RWJUH next contends that Plaintiff cannot prevail with respect to its claim that per diem

nurses were entitled to contributions. RWJUH argues it is undisputed that per diem nurses do
not qualify as “employees” as that term is defined in the CBA and the Trust Agreement, and the
National Labor Relations Board (“NLRB”) has specifically determined per diem nurses are
excluded from the bargaining unit. (Def.’s Mem. ISO Mot. for Summ. J. (“Def.’s Mem.”)
(Dkt. No. 43) at 14.) Plaintiff does not dispute that the bargaining unit did not include per diem
nurses, or that “work they performed as properly classified per diem nurses was not bargaining
unit work.” (Pl.’s Resp. Br. (Dkt. No. 55) at 23 (emphasis in original).) Rather, Plaintiff argues
an issue of fact exists as to whether some per diem nurses were misclassified by RWJUH, and in
fact performed bargaining unit work. (Id.)
In addition to full-time and regular part-time nurses on its payroll, and separate from
leased nurses hired from staffing agencies, RWJUH employed per diem nurses in each year
between 2004 and 2011. (Pl.’s SOAF (Dkt. No. 56) ¶ 79.) Per diem nurses’ hours are not
guaranteed. (Id. ¶ 80; Pl.’s Resp. at 23–24.) Rather, RWJUH hires per diem nurses on its
payroll on an as-needed basis when shifts become available. (Id. ¶ 80.) Because properly per
diem nurses do not work regular schedules, Plaintiff concedes they are not part of the bargaining
unit. (Pl.’s Resp. at 24, n.13; see also 2003–2006 CBA at Art. 1.4 (“[P]art-time employees who
are not regularly scheduled by the Hospital to work at least thirty-two (32) hours per bi-weekly
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pay period . . . shall not be entitled to fringe benefits, except as otherwise provided herein.”);
2006–2009 CBA at Art. 1.5 (same); 2009–2012 CBA (same).) However, nurses may transition
from per diem to full-time or part-time employees, at which point RWJUH would provide the
nurse with a new hire date. (Id. ¶ 81.)
Plaintiff offers payroll records showing that in each year from 2004 to 2011, some nurses
classified by RWJUH as per diem nurses worked enough hours to qualify as “regular part-time”
employees under the CBAs, i.e., they worked in excess of 832 hours per year.
(Pl.’s SOAF ¶¶ 82–83.) The CBA defines “regular part-time work” as at least 32 hours in a
bi-weekly pay period, which corresponds to 832 hours per year. (Id. ¶ 83.) Plaintiff argues the
“regularity of these nurses’ employment raises the reasonable inference that they were
performing nursing work at RWJUH on a full-time or regular part-time basis” and therefore, an
issue of fact exists as to whether these hours should have been considered hours covered by the
CBA and subject to the contribution obligations of the SFA. (Pl.’s Resp. at 24.) Plaintiff also
points to the First Audit Report, which recommended that the job codes for some nurses be
changed because they were misclassified and instead working full-time or regular part-time
schedules. (First Audit Report (Dkt. No. 48–14) at 4 (“Per-diem Nurse are [sic] not covered by
the Collective Bargaining Agreement. However, the employer does not review the hours worked
by this classification, and some may work regular full and part-time schedules. If the employer
by chance discovers that a Per-diem Nurse is working consistant [sic] full or part-time hours, it is
requested that the employee’s status/job code is changed. The employer has 250 to 300 per diem
nurses on it’s [sic] payroll each year.”).
There is no dispute that per diem nurses are excluded from the bargaining unit, and
RWJUH had no obligation to contribute for the hours worked by properly-classified per diem

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nurses. However, Plaintiff has raised sufficient evidence to show that some per diem nurses may
have been improperly classified by RWJUH. Accordingly, there is a genuine dispute of material
fact, and summary judgment cannot be granted. Trial is necessary to determine whether RWJUH
misclassified any per diem nurses who were in fact “full-time or regular part-time” employees
included in the collective bargaining unit.
III.

LEASED NURSES
The parties also dispute whether RWJUH owes contributions for “leased” nurses (also

referred to as “contract” or “traveler” nurses), and they have each moved for summary judgment
based on their interpretation of the relevant agreements. Leased nurses are not on RWJUH’s
payroll, but are hired and paid through employment agencies to provide nursing services.
(Pl.’s SOF ¶¶ 96–98.) Plaintiff contends RWJUH owes $162,525.31 in delinquent contributions
for leased nurses from October 2003 to December 2012, a period during which RWJUH
continued to engage such workers. (Pl.’s SOF ¶¶ 93, 97, 99, 104(f); Pl.’s SOAF ¶ 73.) RWJUH
admits it did not make contributions on behalf of any hours worked by leased nurses, instead
arguing it was not required to do so pursuant to the language in the governing CBAs, SFAs, and
Trust Agreement. (See Def’s Resp. to Pl.’s SOF ¶ 93.)
A. SFA Section I
The parties’ disagreement largely centers on their respective interpretations of Section I
of the SFAs. (2003–2006 SFA at Section I; 2006–2009 SFA (same).) Pursuant to Section I,
RWJUH agreed to pay the Fund “for each compensable hour, outlined below, for employees
subject to the collective bargaining agreement.” (Id.) The “compensable hours that payment to
the Fund shall be based” include, among other things, “[a]ll hours worked, including overtime,”
and “[a]ll hours called for under the collective bargaining agreement, but no less than
eight (8) hours per day for each holiday not worked.” (Id.) In addition, Section I provides that,
15

“[l]anguage in the collective bargaining agreement to the contrary notwithstanding, the Employer
shall contribute on all individuals performing work covered by the collective bargaining
agreement, including probationary, temporary and part-time employees.” (Id.)
Emphasizing the “employees subject to the collective bargaining agreement” clause of the
SFAs, RWJUH submits summary judgment should be granted in its favor because leased nurses
are not employees of RWJUH and are therefore not covered by the CBAs. (Def.’s Mem. at 16
(emphasis added).) The CBAs define an “employee” as a person “included within the bargaining
unit.” (Def. SOF ¶¶ 11, 18, 31.) The bargaining unit consists of:
all full-time and regular part-time registered nurses and graduate nurses employed
by Robert Wood Johnson Hospital at its New Brunswick location, including those
registered nurses and graduate nurses employed as registered nurse first assistants,
staff nurses, in-service education instructors, infection control nurses, utilization
review nurses, community health nurses, urology clinical coordinator, home trainer
coordinators (dialysis), home trainers renal dialysis, field service worker/discharge
planning nurses, Sr. discharge planners, discharge planning nurses, assistant head
nurses-operating room, scoliosis program coordinators, program coordinators,
Pediatric Chronic Disease Program, Cardiac Catherization nurses, cardiac
rehabilitative nurses, specials procedures nurses, vascular laboratory nurses,
lithotripter nurse, oncology nurses and directors, directors of home care,
administrative supervisors, head nurses, assistant head nurses (except operating
room), all other professional employees other than registered nurses, technical
employees, guards and supervisors within the meaning of the Act and all other
employees.
(2003–2006 CBA at Art. 1.1; 2006–2009 CBA (same); 2009–2012 CBA (same).) RWJUH
concludes that based on this language, it is “only obligated to contribute on behalf of nurses who
are full-time or regular part-time employees,” subject to the enumerated exceptions.
(Def.’s Mem. at 16.) RWJUH further argues that the SFAs and Trust Agreement “mirror this
construction.” (Id.) For example, the Trust Agreement defines “employees” as “any person
covered by a Collective Bargaining Agreement and a Participation Agreement” who is “engaged

16

in employment with respect to which the Employer is obligated to make Contributions to the
Trust.” (Trust Agreement (Dkt. No. 48–3) at Art. I § 6.)
Plaintiff also points to Section I, but relies on the SFA language stating “the Employer
shall contribute on all individuals performing work covered by the collective bargaining
agreement.” (See Pl.’s Resp. at 18 (emphasis in original).) Plaintiff argues “the SFA obligation
has always been defined in terms of the work covered by the collective bargaining agreement,
and the obligation to contribute exists irrespective of how the employer categorizes those
individuals who perform the work.” (Id. at 22.) In other words, Plaintiff argues that regardless
of employment status, RWJUH must contribute on behalf of “employees performing
bargaining-unit work in addition to the work performed by its bargaining-unit nurses.”
(Id. at 17–18.) Thus, Plaintiff contends that RWJUH was obligated to make contributions for all
leased nurses who “were performing work covered by the CBAs.” (Id. at 18; Pl.’s Mem.
at 21–25.) To that end, Plaintiff has submitted evidence showing that leased nurses performed
the same type of nursing services as regular bargaining unit employees, including holding similar
responsibilities and working under the same supervisors as regular bargaining-unit nurses
employed by RWJUH. (Pl.’s SOF ¶¶ 100–01.)
Plaintiff’s interpretation is unreasonable in light of the plain language of the agreements,
and it is contrary to the purposes of ERISA Section 515. Plaintiff’s reading would render as
surplusage the first paragraph of the SFAs, which state that RWJUH is only required to
contribute to the Fund on behalf of “employees” who are “subject to the collective-bargaining
agreement.” See, e.g., Teamster’s Local 348 Health & Welfare Fund v. Kohn Beverage Co.,
749 F.2d 315, 319 (6th Cir. 1984) (“A contract will not be construed so as to reject any words as
surplusage if they reasonably can be given meaning.” (quoting Union Inv. Co. v. Fidelity &

17

Deposit Co. of Md., 549 F.2d 1107, 1110 (6th Cir. 1977)). The “bargaining unit” is defined in
the CBAs and consists generally of “all full-time and regular part-time registered nurses and
graduate nurses,” except those working in certain specified job titles not relevant here. Thus, the
CBAs and the SFAs rely on a nurse’s employment status to determine coverage and contribution
obligations, and only work performed by “full-time” or “regular part-time” employees is
covered.
As with per diem nurses, discussed above, to the extent a nurse is misclassified and
should in fact be included in the bargaining unit, there may be a question of fact regarding
RWJUH’s duty to contribute. However, Plaintiff has raised no such argument with respect to
leased nurses, who they concede are not on RWJUH’s payroll and are neither “full-time” nor
“regular part-time” employees. To the extent Plaintiff has argued that RWJUH may skirt their
obligations to the union and the Fund by hiring an excess of leased nurses from staffing agencies,
Plaintiff may resolve that issue by bargaining for a better deal rather than now attempting to read
new meaning into the unambiguous terms of the relevant agreements. Plaintiff’s position with
respect to leased nurses is also belied by its acknowledgement elsewhere that the plain language
of the SFAs and the CBAs does not cover work unless it is performed by a full-time or regular
part-time registered nurse or graduate nurse. (See, e.g., Pl.’s Mem. at 17–18 (arguing RWJUH’s
contribution obligations depend on whether the nurse’s job classification qualifies under the
definition in Article 1.1 of the CBA); Pl.’s Resp. at 23–25 (conceding that RWJUH is not
required to contribute on behalf of per diem nurses who have no regular schedule even though
they are performing the same type of work as full-time and regular part-time employees who are
part of the bargaining unit).)

18

Furthermore, Plaintiff’s reading of the contract is contrary to the statute’s purpose.
Congress passed Section 515 to address the concern that “simple collection actions brought by
plan trustees have been converted into lengthy, costly and complex litigation concerning claims
and defenses unrelated to the employer’s promise and the plans’ entitlement to the
contributions.” G & W Constr., 783 F.3d 1045, 1051–52 (6th Cir. 2015) (alterations and
emphasis in original) (quoting Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 87,
102 S. Ct. 851, 861 (1982)). ERISA therefore “dictates a resolution that provides for the
simplification of collection procedures for the trustees of . . . benefit funds in order to protect the
funds from unnecessary collection costs.” Bunn Enters., Inc. v. Ohio Op. Eng’rs Fringe Ben.
Programs, 606 F. App’x 798, 803 (6th Cir. 2015) (quoting Noe v. R.D. Jones, Excavating, Inc.,
787 F. Supp. 759, 765 (S.D. Ohio 1992)). Plaintiff’s interpretation serves to complicate its own
determination as to the contributions owed by employers participating in the Fund, and it is
contrary to the SFA language specifying employers must contribute for “[a]ll hours worked” by
employees subject to the bargaining agreement—to interpret the language otherwise would
require an hour-by-hour accounting of employees’ work to determine whether they were
performing duties covered under the CBA. (See 2003–2006 SFA at Section I; 2006–2009 SFA
(same).) See also Bunn Enters., 606 F. App’x at 803 (holding a CBA required employers to
contribute to a pension benefit fund for “all hours worked by their employees, regardless of
whether those hours are ‘covered’ under the contract,” which is consistent with the purposes of
ERISA, as it provides for the simplification of the audit process and eliminates the potential for
employers to manipulate contributions); McClesky v. DLF Constr., Inc., 689 F.3d 677, 679
(7th Cir. 2012) (holding a CBA required contributions for each hour worked by covered cement
masons, regardless of the type of work completed, where the CBA covered employees “doing

19

bargaining unit work” and required the employer to contribute to the fund “for each hour worked
by employees covered by the CBAs”); Iron Workers St. Louis Dist. Council Annuity
Trust v. United Ironworkers, Inc., No. 15 C 00713, 2016 WL 4701588, at *8 (E.D. Mo.
Sept. 8, 2016) (finding the CBA language required contributions on behalf of covered employees
for all hours worked, regardless of the type of work performed).
In the alternative, however, Plaintiff contends that leased nurses engaged by RWJUH
should be considered “full-time” or “regular part-time” employees, because RWJUH qualified as
their employer under the joint employment doctrine. (Pl.’s Resp. at 5.) An employer who does
not directly employ a plaintiff may nevertheless be considered a joint employer where it “has
control over another company’s employees sufficient to show that the two companies are acting
as a ‘joint employer’ of those employees.” Swallows v. Barnes & Noble Book Stores, Inc.,
128 F.3d 990, 993 (6th Cir. 1997) (citing Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir. 1985)).
In determining whether a defendant can be considered a joint employer “for purposes of liability
under ERISA and a collective bargaining agreement, the [C]ourt must consider the following
four factors: (1) interrelation of operations, (2) common management, (3) centralized control of
labor relations, and (4) common ownership.” S. Elec. Health Fund v. Kelley,
308 F. Supp. 2d 847, 867 (M.D. Tenn. 2003) (alteration in original) (quoting Mich. State
Painters Ins. Fund v. Ron Simmons Painting, Inc., 875 F. Supp. 417, 421 (E.D. Mich. 1995)),
aff’d sub nom. S. Elec. Health Fund v. Heritage Mut. Ins. Co., 147 F. App’x 497 (6th Cir. 2005).
“The resolution of this question is essentially a factual issue.” Id.
Plaintiff submitted evidence showing that although leased nurses were not paid directly
by RWJUH, it nevertheless exerted significant control over leased nurses. (Pl.’s Resp. at 22.)
Plaintiff asserts RWJUH determined the essential terms of leased nurses’ employment, relying

20

on evidence showing leased nurses could have the same responsibilities as RWJUH employees,
they were supervised by the same nursing supervisors, they attended RWJUH orientation, and
they could be terminated by RWJUH if the hospital was dissatisfied with their performance.
(Pl.’s SOAF ¶¶ 74–77.) Plaintiff also argues RWJUH retained the right to require leased nurses
to use its timesheets and to subject them to its policies, rules, and procedures. (Id. ¶ 76.) This
evidence, which RWJUH does not contradict, is sufficient to raise an issue of fact as to whether
leased nurses should be considered bargaining-unit employees under a joint employer theory.
B. Temporary Employees
Plaintiff makes a second argument based on the text of the SFAs: Plaintiff asserts that
leased nurses are equivalent to “temporary employees,” which the SFAs expressly include in
RWJUH’s contribution obligation. (Pl.’s Mem. at 22–23.) At a minimum, Plaintiff argues there
is a question of fact on this issue. (Pl.’s Resp. at 21.) The SFAs specify that RWJUH must
contribute on behalf of “all individuals performing work covered by the collective bargaining
agreement, including probationary, temporary, and part-time employees.” (2003–2006 SFA
at Section I (emphasis added); 2006–2009 SFA (same).) Plaintiff argues the ordinary meaning
of “temporary employees” can reasonably be read to include leased employees, “who RWJUH
hired through staffing or ‘temp’ agencies and are ordinarily understood to be non-permanent
employees.” (Pl.’s Resp. at 20.) Among other things, Plaintiff also argues the 2003–2006 and
2006–2009 CBAs do not explicitly permit RWJUH to hire leased nurses, but do expressly permit
the hospital to hire temporary employees—Plaintiff concludes that because RWJUH employed
leased nurses during this time period, the only reasonable reading of the CBA language is that
“leased” and “temporary” employees were used interchangeably. (See Pl.’s Mem. at 23.)
Plaintiff also relies on extrinsic evidence, including the parties’ prior settlement agreement, in

21

which the term “Temporary Workers” was defined to mean “individuals performing work for
[RWJUH] but employed by a temporary staffing or leasing agency.” (Dkt. No. 48–19) at 2–3.)
The parties amended the CBA in 2009 to distinguish between “leased” (or “contracted”)
and “temporary” employees. Specifically, under Art. 1.4(a) of the 2009–2012 CBA,
“temporary” employees are defined as “any employee hired on payroll for a predetermined
amount of time typically for a specific purpose or project,” as contrasted with Art. 1.4(b), which
defines a “contracted” employee as “an individual who is employed by another employee who
provides services within the hospital.” (Compare 2009–2012 CBA at 1.4(a)–(b),
with 2003–2006 CBA at Art. 1.4 (defining “temporary” employee, but not “contracted”
employee), and 2006–2009 CBA (same).) Also in 2009, Plaintiff proposed amending the SFAs
to explicitly include leased nurses, but RWJUH claims it refused to agree to the language. 2 (Id.)

2

Plaintiff contends that in 2009, the SFA was amended to include “contracted employees”
among the group of individuals for whom contributions were due. (Pl.’s SOF ¶ 40.) RWJUH
claims that while RWJUH and the union executed the 2009–2012 CBA, no new SFA was
executed in 2009. (Def.’s SOF ¶¶ 20–22, 27.) RWJUH contends that it rejected the 2009–2012
SFA because it added “leased” or “contracted” nurses. (Id. ¶¶ 23–24.) RWJUH’s Chief Human
Resources Officer Martin Everhart testified that he “was repeatedly asked to sign a standard form
of agreement, of which I did not” because “leased” or “contracted” nurses are not employed by
RWJUH and the terms and conditions of employment are set by the staffing agency for which
they work. (Id. ¶ 22–24; Everhart Dep. (Dkt. No. 48–11) at 59, 87–89.) According to RWJUH,
leased nurses were not included in the previous SFAs, and it refused to sign a SFA for 2009 for
this reason. (Def.’s SOF ¶ 26; Def.’s Mem. at 7.) RWJUH argues the 2006–2009 SFA remained
in effect for the duration of the 2009–2012 CBA. (Id. ¶¶ 27–28.) In contrast, Plaintiffs contends
“the SFA was amended in 2009 to include ‘leased employees’ specifically among the group of
individuals for whom contributions were due.” (Pl.’s Mem. at 21.) Plaintiff asserts that although
RWJUH did not separately sign the SFA, the 2009–2012 CBA provided that RWJUH would
make contributions “consistent with the terms of the [SFA] effective July 1, 2009.” (Id.)
Plaintiff further argues RWJUH did contribute to the Fund consistent with the terms of
the 2009 SFA and was bound by it whether it signed it or not. (Id.) In any case, Plaintiff argues
that the parties have treated leased nurses as a type of “temporary employee” for whom
contributions are expressly required, and therefore, while they added the “leased employee”
language to the 2009 SFA, it was only to provide clarity and not to change the contribution
obligation. (Id. at 22.)
22

RWJUH argues the Fund’s suggestion to add language mandating that RWJUH contribute on
behalf of leased nurses for the first time in 2009 “evidences the Pension Fund’s understanding
that no obligation previously existed.” (Id. at 17.)
Even if leased nurses did not qualify as “full-time” or “regular part-time” employees and
were therefore not part of the bargaining unit under any of the relevant SFAs or CBAs, there also
remain genuine issues of material fact as to whether they qualified as “temporary” employees
and were therefore included in the bargaining unit under the agreements. The plain meaning of
“temporary” employee is ambiguous and is subject to more than one reasonable interpretation.
Moore, 690 F.3d at 451. Moreover, the parties have raised reasonable, conflicting interpretations
and have submitted extrinsic evidence supporting their respective positions. We accordingly
cannot conclusively resolve the issue on summary judgment. Id. For the foregoing reasons, both
parties’ motions for summary judgment as to RWJUH’s contribution obligations for leased
nurses are denied.
IV.

ADDITIONAL DISPUTED JOB CLASSIFICATIONS
A. Nursing Education Specialists/Associates, Clinical Nursing Specialists,
Clinical Educators of Operations, and Diabetes Nurse Clinicians
Finally, the parties have filed cross motions for summary judgment with respect to

Plaintiff’s claim that RWJUH was delinquent in its contributions for several job classifications
for the period from October 2003 to December 2011, including (1) $98,282.70 for Nursing
Education Specialists/Nursing Education Associates (job code PP340), (2) $237,628.32 for
Clinical Nursing Specialists (job code PP353), (3) $91,559.56 for Clinical Educators of
Operations (job code PP430), and (4) $20,007.79 for Diabetes Nurse Clinicians (job code
PP516). (Pl.’s SOF ¶ 104.) It is undisputed that each of these positions required an RN license
as a specified qualification for the job and the positions were not supervisory. (Id. ¶¶ 56–73.)
23

RWJUH maintains it does not owe contributions on behalf of any of the above job classifications
because they are not identified in Section 1.1 of the CBAs as being part of the bargaining unit,
the positions do not involve direct patient care as required for inclusion in the bargaining unit,
and the positions have never been treated by RWJUH and the Union as bargaining unit
employees. (Def.’s Mem. at 18–20; Def.’s Resp. to Pl.’s SOF ¶ 104.)
First, according to RWJUH, the CBA includes an enumerated list of job classifications
included in the bargaining unit, and none of the job classifications for which Plaintiff is seeking
contributions are included in that list. (Def.’s Mem. at 18.) RWJUH submits that had the Fund
intended to include these job classifications, it could have included them in the list in the
2006–2009 and subsequent CBAs, but the language remained the same. (Id.) As set forth above,
Article 1.1 defines the bargaining unit as “all full-time and regular part-time registered nurses
and graduate nurses employed by Robert Wood Johnson University Hospital at its New
Brunswick location.” (See 2003–2006 CBA at Art. 1.1; 2006–2009 CBA (same); 2009–2012
CBA (same).) Introduced by the word “including,” it also lists a number of specific nursing
positions that are part of the bargaining unit. (Id.) Further, it lists certain nursing positions that
are excluded from the bargaining unit. (Id. (excluding “all clinical supervisors, assistant
directors, directors of home care, administrative supervisors, head nurses, assistant head nurses
(except operating room)”).) Finally, it excludes non-nursing employees, defined as “all other
professional employees other than registered nurses, technical employees, service and
maintenance employees, clerical employees, guards and supervisors within the meaning of the
Act and all other employees.” (Id.)
We agree with Plaintiff that Article 1.1 sets out “a broad group of employees who are
covered by the CBA (all full-time and regular part-time RNs and GNs), illustrating a

24

non-exhaustive list of functional nurse positions within that broad group, and then excluding a
specifically identified subset of full-time and regular part-time RNs and GNs from the bargaining
unit.” (Pl.’s Mem. at 14.) Contrary to RWJUH’s urging, the fact that the disputed job
classifications are not expressly listed in Article 1.1 is not dispositive, and holding otherwise
would render superfluous the phrase “including those registered nurses and graduate nurses
employed as . . . .” See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 132 (2012) (“The verb to include introduces examples, not an exhaustive list”)
(emphasis in original) (collecting cases)).
Moreover, as Plaintiff argues, RWJUH’s reading of the CBA conflicts with other CBA
provisions, which discuss benefits for nursing positions not enumerated in Article 1.1. (See Pl.’s
Resp. at 11–12.) For instance, the CBAs provide wage rates for “Nurse Practitioners/Clinician,”
indicating they are part of the bargaining unit, yet the position is not specifically listed in
Article 1.1. This supports the conclusion that all full-time and regular part-time registered nurses
and graduate nurses are included in the bargaining unit unless specifically excluded in
Article 1.1. It is undisputed that employees working as Nursing Education Specialists/Nursing
Education Associates, Clinical Nursing Specialists, Clinical Educators of Operations, and
Diabetes Nurse Clinician require an RN license, and these employees are accordingly “full-time
[or] regular part-time registered nurse[s]” employed by RWJUH that do not fall into any of the
specifically excluded categories (i.e. they are not clinical supervisors, assistant directors,
directors of home care, administrative supervisors, head nurses, or assistant head nurses).
(Pl.’s SOF ¶¶ 57, 61, 62, 66, 70, 73.) Thus, these registered nurses plainly fall within the
bargaining unit.

25

Relying on extrinsic evidence, RWJUH raises two additional arguments regarding
contributions for these positions. First, RWJUH argues contributions were not due because
RWJUH and the Union never treated the positions as part of the bargaining unit. (See Def.’s
Resp. at 11–14.) In support, RWJUH points to evidence showing RWJUH’s payroll department
has not deducted union dues from the paychecks of employees in the above job codes. (Id. at 12
(citing Swenarton Cert. (Dkt. No. 53–1) ¶¶ 3–5).) RWJUH argues Plaintiff is “asking the Court
to interpret the CBAs in direct contradiction to the manner in which both the Union and RWJUH
have interpreted and implemented the CBAs,” and the parties did not make any changes or
modifications to the CBAs when they were renegotiated in 2006 or 2009. (Id.) While RWJUH’s
evidence may support an inference that RWJUH and the Union did not treat the job
classifications at issue as dues-paying union members, the language in the CBAs and the SFAs
plainly contradicts this understanding, and we must rely on the unambiguous words of the
contract, which control here. Orrand, 794 F.3d at 562 (“Because ‘multiemployer plans are
entitled to rely on the literal terms of written commitments between the plan, the employer, and
the union, the actual intent of and understandings between the contracting parties are
immaterial.’”) (quoting New Bakery, 133 F.3d at 959).
Nor is RWJUH’s second argument—that the bargaining unit only includes registered
nurses providing direct patient care—convincing. RWJUH claims the nursing classifications are
not eligible for contributions because the bargaining unit only includes nurses providing direct
care to patients. (Def.’s Mem. at 19.) According to RWJUH, the job description for a
Registered Nurse, a staff nurse position indisputably within the bargaining unit, “is entirely
focused on direct patient care as illustrated in the position’s identified responsibilities,” while the
disputed job titles of Nursing Education Specialists/Nursing Education Associates, Clinical

26

Nursing Specialists, Clinical Educators of Operations, and Diabetes Nurse Clinician are filled by
nurses employed as clinical subject matter experts with no direct patient care responsibilities.
(Id.) Specifically, RWJUH contends the descriptions for the job codes at issue consist of
“developing, implementing, evaluating, and serving as a clinical resource in the specific area of
expertise.” (Def.’s Resp. at 13–14 (citing Sullivan Cert. ¶ 20, Ex. S (Dkt. No. 48–20)).)
RWJUH also relies on the testimony of Anastasia Jacobs, Chief Human Resources
Officer and Vice President at RWJUH, to support its position that the bargaining union was only
intended to include registered nurses that were actually performing direct patient care on a
regular basis. (Def.’s Resp. at 13.) Jacobs testified that “employees subject to the collective
bargaining unit” are those nurses that “have direct care of patients on a consistent regular basis.”
(Sullivan Cert. ¶ 7, Ex. F, Jacobs Dep. (Dkt. No. 48–1) at 156–57.) Jacobs further stated that
nurses who were employed as “clinical subject matter expert[s]” were excluded from the
bargaining unit. (Id. at 155–56.) RWJUH also argues that not restricting the bargaining unit to
nurses providing direct patient care would create the unintended result that anyone with a nursing
license—even a human resources manager or an “IT Tech person”—would be included in the
bargaining unit. (Id. at 13.)
Plaintiffs do not dispute that reading the bargaining unit to include “IT Tech” employees
or human resources employees “would be anomalous,” but Plaintiffs nevertheless insist that the
bargaining unit includes “only those full-time and regular part-time RWJUH employees
practicing as professional nurses and for whom maintenance of an RN license is a requirement
for the job.” (Pl.’s Reply Br. (Dkt. No. 62) at 18 (emphasis in original).) In other words,
Plaintiffs argue the plain language of the CBA supports a finding that only individuals that are
employed as nurses and required to maintain an RN license are included in the bargaining unit.

27

(Id. (further arguing “if the position does not require an RN license, the employee working in
that position is not practicing as a licensed professional nurse, irrespective of whether that person
happens to have an RN license”).) Plaintiffs also observe that even some of the enumerated
positions listed in Article 1.1 of the CBAs may not provide direct patient care. (See Pl.’s Resp.
at 15 (citing RWJUH Dep. (Dkt. No. 45–2) at 191–193).) Furthermore Plaintiffs observe that
RWJUH shifted and reassigned nursing duties, and therefore, whether positions require “direct
patient care” has varied throughout the years, but they have all consistently required an RN
license to perform the job. (Id.)
RWJUH’s position is contrary to the unambiguous contract language, and the Fund is
entitled to rely on the plain language of the CBAs. Orrand, 794 F.3d at 562. Nowhere does
Article 1 or the CBA otherwise mention the provision of direct care responsibilities as a
prerequisite to inclusion in the bargaining unit. Because there is no genuine dispute of material
fact as to whether RWJUH was obligated to contribute on behalf of Nursing Education
Specialists/Nursing Education Associates, Clinical Nursing Specialists, Clinical Educators of
Operations, and Diabetes Nurse Clinicians, and it is further undisputed that RWJUH did not
make contributions for hours worked by these employees during the relevant period, summary
judgment is granted as to these delinquencies. RWJUH is liable to the Fund for past-due
contributions for hours worked by employees in the job codes PP340, PP353, PP430, and PP516.
B. Community Health Nurses
Plaintiff also alleges RWJUH underreported certain hours worked by Community Health
Nurses, a position expressly included in the list of positions falling within the bargaining unit in
Article 1.1 of the CBAs. (Pl.’s Mem. at 11.) Relying on the First Audit Report, Plaintiff
contends RWJUH owes the Fund $6,946 for hours worked by Community Health Nurses during
the 2003 to 2005 time period. (Pl.’s SOF ¶ 82.) While RWJUH made a retroactive contribution
28

on January 17, 2005 on behalf of some Community Health Nurses, Plaintiff relies on the First
Audit Report in arguing RWJUH still owes $6,946 for hours worked by five additional
Community Health Nurses between October 2003 and January 2005. (Pl.’s SOF ¶¶ 81–82;
Pl.’s SOAF ¶¶ 70–71; Vivirito Decl. (Dkt. No. 59) ¶ 8.)
RWJUH does not disagree that the position is included in the bargaining unit, but instead
argues no contributions are outstanding on behalf of Community Health Nurses, because
although RWJUH failed to “properly contribute” on behalf of these nurses “[d]ue to a clerical
error” during the 2003 to 2005 time period, it corrected the error and “provided the Pension Fund
with the owed contributions.” (Def.’s Mem. at 18; see also Def.’s Resp. to Pl.’s SOF ¶ 82.)
RWJUH relies on a January 11, 2008 email from Geri Ann Swenarton, an RWJUH employee, to
the Fund’s auditor, Phil Vivirito, stating that RWJUH reviewed the draft audit report and
requested a meeting to discuss “areas we are not in agreement with.” (Sullivan Cert., Ex. O
(Dkt. No.48–16) at PageID#: 1164.) To the extent the email is admissible or relevant, it falls
short of establishing RWJUH is not delinquent in its contributions on behalf of the Community
Health Nurses at issue, and Plaintiff has offered competent evidence to the contrary. Based on
the evidence before us, we cannot conclude whether RWJUH has met its contribution obligations
with respect to Community Health Nurses. Accordingly, summary judgment is denied as to
Plaintiff’s claim for delinquent contributions for Community Health Nurses.
C. Child Life Coordinators
Finally, RWJUH argues the Child Life Coordinator position does not require a registered
nurse license, and is therefore excluded from the bargaining unit. (Def.’s Mem. at 20.) A Child
Life Coordinator addresses the psychological needs of children, young adults, and adolescents,
and need not be a registered nurse or graduate nurse. (Id.) Plaintiff concedes that the position
does not require a registered nurse license, and employees in the position are not practicing as
29

professional nurses; therefore, it agrees the position is excluded from the bargaining unit.
(Pl.’s Resp. at 16, n.8.) Accordingly, summary judgment is granted in RWJUH’s favor with
respect to any delinquent contributions allegedly owed for Child Life Coordinators.
CONCLUSION
For the foregoing reasons, we grant Plaintiff’s partial motion for summary judgment as to
its claims for delinquent contributions for (1) Case Managers (for the period from
October 1, 2006 to September 30, 2007); and (2) Nursing Education Specialists/Nursing
Education Associates, Clinical Nursing Specialists, Clinical Educators of Operations, and
Diabetes Nurse Clinicians. We grant RWJUH’s motion for summary judgment as to Plaintiff’s
claim for delinquent contributions owed for Child Life Coordinators. The motions for summary
judgment are denied with respect to Plaintiff’s claims that RWJUH failed to contribute to the
Fund on behalf of (1) per diem nurses, (2) leased nurses, and (3) Community Health Nurses. In
light of the ruling on the parties’ motions for summary judgment, the joint motion to modify the
scheduling order is denied as moot. It is so ordered.

____________________________________
Marvin E. Aspen
United States District Judge

Dated: June 12, 2017
Chicago, Illinois

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