The opinion of the court was delivered by: McMILLEN, District Judge.
Following the entry of our decision dated January 16,
1981, plaintiffs filed a motion for reconsideration,
supported with a detailed memorandum of law which calls
attention to many decisions not previously cited by
plaintiffs' attorneys. The defendant remains in default.
For reasons unrelated to the decisions relied on by
plaintiffs, we find that a judgment of default on the basis
of the original complaint should be entered against
Plaintiffs' principal contention seems to be that the
Union, Local 701 of the I.B.E.W., is not a real party in
interest in this case. We agree that the Union has only an
indirect financial interest in the outcome of the case,
although it does of course have a fiduciary obligation to
represent its members fairly and effectively. But one
reason why the Union is a real party in interest in our
opinion is that only a "labor organization" as defined in
the Labor-Management Relations Act can sue for violation of
a contract under § 301(a). Therefore, the Union is a necessary
party in order to confer jurisdiction on the federal court. No
reason has been shown why the Union cannot be joined pursuant
to Rule 19(a), and all of the requirements set forth for
joinder in that rule are satisfied in the case at bar.
Equally important, should a defendant employer attack the
validity or authenticity of the collective bargaining
agreement under which the trusts were created, the Union
and all of its members would have a vital interest in the
outcome of such litigation, including the question of
whether or not the matter is subject to an arbitration
clause in a collective bargaining contract. We do not
intend to imply, as plaintiffs apparently believe, that the
trustees are not proper parties in cases of this kind, but
we do hold that the collective bargaining agent itself may
also be vitally interested in the outcome of the litigation
if a contest should arise.
Plaintiffs cite several cases in their memorandum (pp.
4-5) representing that they affirm the right of trustees to
sue for money due to them under § 301.*fn* The only case which
gives us pause, however, is Lewis v. Quality Coal Corp.,
243 F.2d 769 (7th Cir. 1957). We have already pointed out in our
previous decision why we do not believe the language in that
case is applicable to a § 301 complaint, and we need not repeat
those reasons here. We do not disagree with Lewis but simply do
not believe it controls our decision in a suit for recovery of
contributions to a pension or health and welfare fund.
Judge Milton I. Shadur has called our attention to an
interesting decision which he rendered in the case of
Lakeland Construction Co. v. Operative Plasterers & Cement
Masons International Association Local No. 362, 79 C 3101,
entered February 20, 1981. As can be noted from the title of
the case, the lawsuit was brought by an employer against the
union, for monies allegedly due under trust agreements in the
collective bargaining contract. Judge Shadur held that the
trustees of the fund should be made parties pursuant to Rule
19, and he ordered that this be done, relying upon Lewis v.
Quality Coal Corp., supra, inter alia. We have no dispute with
Judge Shadur's decision and believe it is entirely consistent
with the one we entered in the case at bar, although of course
it does not go into the point which we raised because the union
was already a party defendant in Judge Shadur's case.
Every 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 agreement.
This amendment is codified in § 1145 of Title 29 (E.R.I.S.A.)
and was quoted at the top of p. 8 of our original decision of
January 16, 1981.
Since it appears therefore that this complaint was filed
by fiduciaries to enforce the contributions provisions of
multiemployer funds (complaint, paragraph 2b), and
paragraph 5, plaintiffs are entitled to an entry of summary
judgment. They have supported their motion by an affidavit
showing that defendant owes a total of $9,187.03 to the
plaintiff fiduciaries, including liquidated damages of 10
percent and an auditing fee of $450.00. To this will be
added the fees for the attorneys representing plaintiffs
which are supported by the affidavit of Robert I. Shane,
Esquire showing a total amount of $543.75 attorney's fees
and $85.00 expenses.
Plaintiffs may serve and file an appropriate judgment
order in accordance with the foregoing decision within two
weeks (14 days) hereof. Plaintiffs motion to reconsider our
decision of January 16, 1981 is granted to the extent that
the decision denied plaintiffs motion for a default
judgment and required the filing of an amended complaint
joining the appropriate union as a plaintiff, ...