United States District Court, Northern District of Illinois, E.D
January 25, 1974
JOHN RIORDAN 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
amended complaint for lack of equitable jurisdiction.
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 the Chicago Area
Retail Food Clerks Health and 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
Corporation 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 amended 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
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 provisions
of the collective bargaining agreement.
4. There is due and owing from defendants to the
Welfare Fund on account of omitted contributions
and liquidated damages for the period of January 1,
1969 through the present date, an amount of money,
the sum of which is unknown to plaintiffs.
Plaintiffs are entitled to an accounting from
defendants. This accounting should state the number
of individuals regularly employed by defendants,
including those regularly employed on a part-time
basis and the length of time all such individuals
were employed by defendants, including those
regularly employed by defendants for the length of
time all such individuals were employed by
defendants for the period of January 1, 1969
through the present date.
5. Such an accounting is necessary in order to
properly determine the amount due to the Welfare
Fund from defendants as set forth in the amended
complaint and because of the complexity of both
accounts involved and the records which contain the
information needed to determine the amount due are
in the exclusive possession of defendants.
6. Plaintiffs have requested defendants to furnish an
accounting and defendants have refused to account.
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 instant motion that the
amended complaint for accounting is fatally defective, contend
1. the amended complaint failed to allege an
inadequate remedy at law;
2. the amended complaint failed to allege additional
grounds for equitable
relief other than the demand for accounting; and
3. the amended complaint failed to allege privity of
contract between plaintiff and defendant.
The plaintiffs, in opposition to the instant motion, contend
that they, in the amended complaint, adequately and properly
state a cause of action.
It is the opinion of this Court that the instant motion is
A prayer for an accounting will not, in itself, render a
complaint cognizable in equity. Root v. Railway Co.,
105 U.S. 189, 26 L.Ed. 975 (1882). It is well settled that an accounting
is proper where the accounts are all on one side and there are
circumstances of great complication or difficulties in the way of
adequate relief at law. See 4 Pomeroy, Equity Jurisprudence, §
It is clear that in the instant action the plaintiffs
adequately request an accounting in order to properly determine
the amount due to the Welfare Fund from defendants on the grounds
that the records which contain the relevant information for the
accounting are in the exclusive possession of the defendants and
that the records themselves contain some complexities. Thus the
plaintiffs in the amended complaint, sufficiently state an action
for an accounting.
Further, as this Court has previously stated in its Memorandum
Opinion and Order of May 17, 1973, there is no requirement for
the plaintiffs and defendants in the instant action to be in
privity of contract. Looking at the substance of the relationship
between the parties, there is nothing to be gained by requiring a
suit by the union rather than by the Trustees of its Welfare
Fund. The Seventh Circuit has held that Trustees of a Welfare
Retirement Fund are the real parties in interest in a suit to
recover sums due to the fund by an employer. Lewis v. Quality
Coal Corporation, 243 F.2d 769 (7th Cir. 1957). See also, United
Mine Workers of America, District 22 v. Roncco, 314 F.2d 186
(10th Cir. 1963); International Ladies' Garment Workers v.
Jay-Ann Co., 228 F.2d 632 (5th Cir. 1956).
While these courts have held that Trustees are indispensable
parties to such suits when they are brought by a Labor Union, the
converse is not true.
The United States Supreme Court has directed that Section 301
is not to be given a narrow meaning. Section 301 is designed to
vindicate individual employees' rights arising from a collective
bargaining contract. Smith v. Evening News Association,
371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Vindication of such
rights is the purpose of this suit, and thus the jurisdiction of
this Court over the instant matter would be proper and
appropriate.*fn* It is clear that the Labor Union is not an
indispensable party to this litigation and that this Court has
jurisdiction over the instant action.
Since an accounting appears to be essential to the proper
litigation of the instant action brought under Section 301 of the
Labor Management Relations Act (29 U.S.C. § 185), it is clear
that the plaintiffs may request an accounting from the defendants
of the contributions owed to their Fund.
Accordingly, it is hereby ordered that the defendants' motion
to dismiss is denied.