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THELIN v. MITCHELL

December 22, 1983

RONALD E. THELIN, ET AL.; JAMES CAPORALE, ET AL.; AND CEMENT MASONS' PENSION FUND, LOCAL 803, ET AL., PLAINTIFFS,
v.
EDWARD K. MITCHELL, IND., AND D/B/A EDWARD K. MITCHELL CONSTRUCTION COMPANY, DEFENDANTS.



The opinion of the court was delivered by: J. Sam Perry, Senior District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

NOW COMES the plaintiffs, RONALD E. THELIN, et al.; JAMES CAPORALE, et al.; and CEMENT MASONS' PENSION FUND, LOCAL 803, et al., by their attorneys, MARC M. PEKAY and ARNOLD and KADJAN, and submit these proposed Findings of Fact and Conclusion of Law.

I. FINDINGS OF FACT.

1. (a) The plaintiffs, RONALD E. THELIN, et al., are the Trustees of the CEMENT MASONS' LOCAL 502 FRINGE BENEFIT FUNDS (hereinafter referred to as "Cement Masons' 502 Funds").

(b) The plaintiffs, JAMES CAPORALE, et al., are the Trustees of the LABORERS' PENSION AND WELFARE FUNDS (hereinafter referred to as "Laborers' Funds").

(c) The plaintiffs are also the CEMENT MASONS' PENSION FUND, LOCAL 803, et al., (hereinafter referred to as "Cement Masons' 803 Funds").

2. (a) The Cement Masons' 502 Funds have been established pursuant to Collective Bargaining Agreements heretofore entered into between Cement Masons' Local 502 ("the Cement Masons' 502 Union") and certain employer Associations.

(b) The Laborers' Funds have been established pursuant to Collective Bargaining Agreements heretofore entered into between the Laborers' District Council of Chicago and Vicinity and its affiliated locals ("the Laborers' Union") and certain employer Associations.

(c) The Cement Masons' 803 Funds have been established pursuant to Collective Bargaining Agreements heretofore entered into between Cement Masons' Local 803 ("the Cement Masons' 803 Union") and certain employer Associations.

3. The Funds named in paragraph 2 are express trusts created by written trust agreements executed by employer Associations representing construction contractors and the Union. Each such Fund was formed pursuant to and exists subject to the provisions of Section 302(c)(5) of the Labor Management Relations Act, as amended [29 U.S.C. § 186(c)(5)]. The Funds are express trusts established by the Union and employer Associations representing contractors engaged in business in the construction industry and have standing to sue pursuant to ERISA, 29 U.S.C. Section 1132(d)(1).

4. For all periods relative to this cause, defendant, Edward K. Mitchell, was a sole proprietor doing business as Edward K. Mitchell Construction Company (hereinafter called "Mitchell"), with its principal place of business located within this judicial district.

5. At all times material herein defendant, Mitchell, was an employer engaged in an industry affecting commerce.

6. Defendant, Mitchell, was engaged in the Construction Industry in the Chicago-land area as a concrete contractor for all ...


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