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ALLEN v. CIVITELLO

June 5, 1981

CARL ALLEN, GEORGE FREDA, ED LA SANKA, KARL NIEDERMEYER, JACK LOTH, AND SHERMAN NICK, AS TRUSTEES OF THE PENSION, WELFARE, AND VACATION FUNDS OF IBEW LOCAL 701, PLAINTIFFS,
v.
ALDO CIVITELLO, INDIVIDUALLY AND D/B/A CAROL STREAM ELECTRIC, DEFENDANT.



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

DECISION

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 defendant.

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, ...


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