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CENT. STATES, ETC. v. CHICAGO-ST. LOUIS TRANSPORT

March 4, 1982

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND AND CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, ET AL., PLAINTIFFS,
v.
CHICAGO-ST. LOUIS TRANSPORT CO., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Central States, Southeast and Southwest Areas Pension Fund ("Pension Fund") and Central States, Southeast and Southwest Areas Health and Welfare Fund ("Health Fund") (collectively "Funds") and the individual Fund trustees sue Chicago-St. Louis Transport Company ("Transport") for alleged delinquencies in contributions owed to Funds. Funds have moved for summary judgment, and Transport has filed a cross-motion for summary judgment on one of Funds' three claims. For the reasons stated in this memorandum opinion and order, Funds' motion is denied and Transport is granted summary judgment on two of the claims.

Facts

Since at least 1970 (except for the brief hiatus described in the next paragraph) Transport has been a member of the Motor Carriers Labor Advisory Council ("MCLAC"), a multi-employer association that negotiates collective bargaining agreements on behalf of participating employers. In 1973 MCLAC negotiated such an agreement (the "1973 Agreement") with Local Union Nos. 50, 179 and 600 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Teamsters"). Under the 1973 Agreement, which was to expire March 31, 1976,*fn1 contributions were to be made to Funds effective July 1, 1974.

In January 1976 Transport withdrew from MCLAC. As March 31 approached it became evident that some Transport employees were dissatisfied with Teamsters. As a result the 1973 Agreement was permitted to run out and new negotiations were not undertaken. Dissatisfaction with Teamsters culminated with the May 25, 1976 filing with the NLRB of a petition seeking decertification of Teamsters Locals Nos. 179 and 50. In an August 27, 1976 decertification election Transport's employees voted to retain Teamsters as their collective bargaining representative. Transport then reaffiliated with MCLAC to negotiate a new collective bargaining agreement. Negotiations resulted in a new agreement (the "1977 Agreement") in June 1977, effective August 28, 1977. Plaintiffs' claimed delinquencies fall into three categories:

    (1) During the January 1, 1975 to April 3, 1976
  period as well as from August 28, 1977 to the
  present, deficiencies were caused by Transport's
  failure to report to Funds accurate and timely
  changes in employees' status (via "EBCC-1"
  Forms).
    (2) During the gap period from April 4, 1976 to
  August 27, 1977 Transport made payments ("under
  protest") to the Health

  Fund but not the Pension Fund. Plaintiffs contend
  Transport remained responsible for both kinds of
  contributions by virtue of the 1973 Agreement.
    (3) Under the 1977 Agreement Transport made
  payments to Funds at "split rates" (lower
  contributions were made for employees hired after
  a certain date). Plaintiffs contend split rate
  contributions are improper and contributions
  should have been made at the full rate for all
  employees.

Untimely Submission of Forms

It is undisputed that Transport was required to submit forms to Funds indicating all changes in employee status. Plaintiffs contend Transport failed timely to submit certain forms, creating contribution deficiencies.

First plaintiffs have not proved that the late submission of such forms did result in delinquency. This is after all a motion for summary judgment, requiring affidavits to take the place of admissible evidence, not conclusory assertions. On the face of things, lateness in reporting might cause lateness in contributions, but not their total absence; plaintiffs must present more facts. Thus even if tardiness were proved plaintiffs would have failed to meet their burden of demonstrating that the alleged delinquencies exist in fact.

But even aside from that point plaintiffs cannot prevail at this pretrial stage. In support of their summary judgment motion plaintiffs have submitted the affidavit of Funds' Director of Operations Accounting Division George Psaras, who states Transport has frequently been late in reporting employee status changes. But Transport has responded with the affidavit of its Vice President and General Manager Robert Gootee, who says Transport has never been late in reporting such changes. Clearly a genuine issue of material fact remains. Plaintiffs' motion for summary judgment must be denied.

Hiatus Period

Any discussion of Transport's possible responsibility for contributions during the hiatus period requires analysis of the contractual agreements among Teamsters, Funds and Transport. Teamsters ...


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