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*fn*: March 16, 1981.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-736 -- Prentice H. Marshall, Judge .

Before Fairchild, Chief Judge, Swygert, Circuit Judge, and Campbell, Senior District Judge.*fn**

Author: Campbell

Plaintiffs, Trustees of the Pension Fund of the Construction and General Laborers District Council of Chicago and Vicinity and the Laborers Welfare Fund of the Health and Welfare Department of the Construction and General Laborers District Council of Chicago and Vicinity (The Funds), brought this action to recover fringe benefit contributions allegedly owed by defendant. Jurisdiction is predicated on Section 301 of the Labor Management Relations Act, 29 U.S.C. ยง 185, which permits Federal Courts to hear breach of contract claims between employers and labor organizations.

Plaintiffs claimed that the defendant failed to make contributions allegedly due the funds pursuant to a collective bargaining agreement between the parties. The period for which contributions were allegedly due is March 1974 through the time of filing suit in March of 1977. Defendant denied that it entered into any such agreement and denied that any contributions were due the Fund.

In March 1979 a bench trial was held before Judge Marshall. At the conclusion of the trial, the district court found for the defendants on the question of liability, on the theory that no contract was entered into between the parties. On August 29, 1979 the District Court entered formal Findings of Fact and Conclusions of Law, and Judgment in favor of defendant Mar Les, Inc. We affirm.

From 1968 until March of 1974 Mar Les Concrete was operated as a sole proprietorship by Leslie and Marlene Dominick. Mar Les, Inc. and its predecessor sole proprietorship have engaged in concrete construction work, primarily residential foundations, driveways, porches and sidewalks. Leslie Dominick is the president and sole stockholder of the corporation. During peak periods Mar Les, Inc. employed as many as ten laborers. Between 1970 and 1978 only two of its employees joined a Labor Union. It was apparently a desire to obtain union benefits for one of those employees, Cliff Boyd, that prompted the Dominicks to sign the two memoranda of understanding which plaintiffs claim gave rise to the obligation to make contributions to the Funds.

It is undisputed that defendants never signed a collective bargaining agreement with a Labor Union. Defendant's obligations, if any, to the Funds arose as a result of the signing of two memoranda of understanding. These memoranda were dated June 1, 1970 and June 1, 1971, although Judge Marshall found that the plaintiffs had failed to establish the authenticity of those dates. The memoranda were both three paragraphs in length and contain identical language. The memoranda provide that the employer recognizes the Union as the sole bargaining agent for all laborers employed by the Employer; that certain collective bargaining agreements are incorporated by reference and that the employer agrees to be bound by those agreements; and that the employer agrees to pay amounts set forth in the collective bargaining agreements to the Funds. The memoranda were sent unsigned to the defendant's office. Marlene Dominick signed them and returned them to the Plaintiff where the trustees signed the documents and placed them in the Funds' files. Executed copies were never sent to Mar Les, nor were copies of the collective bargaining agreement ever provided to the defendant.

The collective bargaining agreement referred to in the memoranda of understanding was a lengthy contract between the Construction and General Laborers Union and seven Chicago area contractors' associations. The agreement provided that it would remain in full force and effect until 12:01 a.m., June 1, 1972. The collective bargaining agreement set forth the terms of employment for union laborers in all aspects of the building trade. It set standards for wages, hours, days off and contribution to health and welfare, and to pension funds. A copy of the agreement was received in evidence, and is part of the record in this proceeding.

The memoranda of understanding signed by the parties also made reference to "Agreements and Declaration of Trust" establishing the employee trust funds. The agreements provided that the employer would be "bound by and considered a party to" those trust agreements. The actual trust agreements, however, were never delivered to the defendant nor introduced at trial. Thus, they are not part of the record on appeal.

The collective bargaining agreement between the Laborers' Union and the seven Chicago area contractor associations expired, by its own terms, on June 1, 1972. On August 10, 1972, the parties entered into an agreement extending the terms of the collective bargaining agreement until June 1, 1973 and amending the specific wage provisions contained in the prior agreement. The defendant was not a party to that agreement and never received a copy of the agreement.

From July 1969 through October 1971, Mrs. Dominick submitted regular reports together with contributions to the Funds on behalf of the one union employee, Cliff Boyd. Mr. Boyd ceased working for plaintiff in October of 1971. Mrs. Dominick submitted forms reflecting "none employed" until February 1972 indicating there were no union employees at that time. No forms were submitted to the Funds after February 1972.

At no time did the parties act in a manner consistent with the collective bargaining agreement other than the contributions on behalf of Mr. Boyd. The union never demanded that defendant post bonds required under the collective bargaining agreement. Mar Les did not utilize the union hiring hall as required under the collective bargaining agreement. Mar Les employed casual laborers with no union affiliation and no complaint was ever made by the union. A shop steward was never appointed, nor did any representative of the union even discuss defendant's obligations under the collective bargaining agreement.

The union entered into further agreements with the contractor associations extending the collective bargaining agreement, and further memoranda of understanding with various construction firms in the Chicago area. After 1971 no memoranda of understanding were ever sent to the defendant nor were any contracts extending the collective bargaining agreements ever sent to the defendant.

Appellee, Mar Les, Inc., contends that the clearly erroneous standard of Rule 52(a) is the appropriate standard of review. Clearly, the Rule provides that a District Court's findings of fact are only to be overturned if clearly erroneous. However, conclusions of law, such as the determination that no contract ever came into being, ...

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