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OWEN v. ONE STOP FOOD & LIQUOR STORE
May 17, 1973
RICHARD P. OWEN ET AL., PLAINTIFFS,
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
The plaintiffs are the Board of Trustees of Chicago Area
Retail Food Clerks Pension Fund ("Pension Fund") which trust
allegedly was created and exists in accordance with the
provisions of 29 U.S.C. § 186(c) and pursuant to a certain
Agreement and Declaration of Trust, dated November 25, 1963 as
amended from time to time.
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 their complaint allege the following
facts, inter alia:
1. The Pension Fund was established for the
purpose of providing retirement benefits for
employees (and their beneficiaries) whose
employers have entered into a collective
bargaining agreement with a labor
organization which is a party to the Pension
Fund's Agreement and Declaration of Trust.
This Pension Fund arrangement is commonly
referred to as a jointly administered
multi-employer Pension Fund.
2. The Retail Food and Drug Clerks Union, Local
1550, a party to the Pension Fund's Agreement
and Declaration of Trust, entered into a
collective bargaining agreement governing the
wages, hours, conditions of work and terms of
employment for employees of the defendants.
This agreement became effective November 25,
1964 and provides in Article 18 that
defendants would contribute to the Pension
Fund a certain sum on all straight-time hours
worked by employees covered by the agreement.
The agreement also provides that any employer
who is sixty days delinquent in the payment
of any or all of the contributions required
by Article 18 shall pay as liquidated damages
a sum of twenty dollars or ten percent of the
amount delinquent, whichever is greater.
3. The defendants have failed and refused to
contribute to the Pension Fund in accordance
with the provisions of the collective
4. There is due to the Pension Fund the sum of
$10,000 which constitutes unpaid
contributions and liquidated damages for the
period from January 1, 1969 through December
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,
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
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
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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