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.
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"
(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
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
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 ...