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WISHNICK v. ONE STOP FOOD & LIQUOR STORE

May 17, 1973

MORRIE WISHNICK ET AL., PLAINTIFFS,
v.
ONE STOP FOOD & LIQUOR STORE, INC., AND NDK CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the defendants' motion to dismiss the complaint. This action is brought under 29 U.S.C. § 185 for an alleged violation of a contract between an employer and a labor organization.

The plaintiffs are the Board of Trustees of Chicago Area Retail Food Clerks Health & Welfare Trust Fund ("Welfare Fund"), which trust allegedly was created and exists pursuant to a certain Agreement of Trust, dated December 1, 1960, as amended thereafter from time to time, in accordance with the provisions of 29 U.S.C. § 186(c).

The defendants, One Stop Food & Liquor Store, Inc., and NDK, are employers in an industry affecting commerce as defined by the Labor Management Act of 1947, and have their principal places of business in Chicago, Illinois.

The plaintiffs in the complaint allege the following facts, inter alia:

  1.  The Welfare Fund was established for the
      purpose of providing health and welfare
      benefits for employees whose employers have
      entered into a collective bargaining
      agreement with a labor organization which is
      a party to the Welfare Fund's Agreement and
      Declaration of Trust. This Welfare Fund
      arrangement is commonly referred to as a
      jointly administered multi-employer Health
      and Welfare Fund.
  2.  The Retail Food and Drug Clerks Union, Local
      1550, a party to Welfare Fund's Amended
      Agreement and Declaration of Trust, entered
      into a collective bargaining agreement
      governing the wage, hours, conditions of
      work, and terms of employment for employees
      of the defendants. The Agreement became
      effective November 29, 1964, and provides in
      Article 17 that defendants would contribute
      to the Welfare Fund certain sums per month
      for each regular employee and regular
      part-time employee. The Agreement also
      provides that any employer who is sixty days
      delinquent in the payment of any or all of
      the contributions shall pay as liquidated
      damages a sum of twenty dollars or ten
      percent of the amount delinquent, whichever
      is greater.
  3.  The defendants failed and refused to
      contribute to the Welfare Fund in accordance
      with the provision of the collective
      bargaining agreement.
  4.  There is due to the Welfare Fund the sum of
      $10,000 which constitutes unpaid
      contributions and liquidated damages for the
      period from January 1, 1969 through December
      31, 1971.

The plaintiff Trustees seek to recover from the defendants an accounting of contributions due, unpaid contributions, liquidated damages and the cost of maintaining this suit.

The defendants, in support of their motion to dismiss, contend:

  1.  The plaintiffs' reliance on 29 U.S.C. § 185
      to confer jurisdiction on this court is
      misplaced since plaintiff is not a labor
      organization and/or party to the collective
      bargaining agreement.
  2.  Rule 12(b)(7) of the Federal Rules of Civil
      Procedure requires the dismissal of the
      action because of the failure of the
      plaintiff to join the labor union which is a
      necessary party.
  3.  This Court lacks jurisdiction over the
      subject matter because the union has not
      exhausted its contractual remedies under the
      collective bargaining agreement as said
      ...

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