owing, plus an audit cost of $200.00 (See Exhibit 24).
20. The defendant maintained that, pursuant to an Installment
Note (Exhibit 16) that no monies should be due for the period
prior to November 1, 1974, and that the amount of the audit for
the Laborers' Funds should be reduced by the amount of $4,090.24.
I credit, however, the testimony of Raymond J. Holeman, Director
of Field Representatives for the Laborers' Funds, that his
computations of the amounts paid demonstrate that no monies were
paid or collected for any period after December 31, 1974, so that
all monies are due.
21. While I rejected defendants' offer of proof with regards to
the issue of duress, as a matter of law, I find that, based on
the offer of proof, the incidents described therein did not
22. The defendant, pursuant to the Agreements, is obligated to
make contributions for the amount of the audit, 20 percent in
liquidated damages, the cost of the audit, and all reasonable
court costs and expenses and legal fees incurred herewith.
23. Based upon the audits described above, I find that the
amount of monies due and owing would be as follows: a) Laborers'
Funds for the period January 1, 1974, through March 31, 1980,
$59,033.69, which consists of $48,673.91 in contributions
(Exhibit 18), $625.00 for the cost of the audit (Exhibit 22), and
20 percent in liquidated damages of $9,734.78; b) Laborers' Funds
for the period April 1, 1980, through March 31, 1983, the total
sum of $8,335.84, which includes $6,613.20 in contributions,
$400.00 for the cost of the audit, and $1,322.64 in 20 percent
liquidated damages; c) Cement Masons' 803 Funds for the period
January 1, 1974, through March 31, 1980, the total sum of
$1,073.25, which consists of $811.04 in contributions, $100.00
for the cost of the audit, and $162.21 in 20 percent liquidated
damages; d) Cement Masons' 502 Funds for the period April 1,
1980, through March 31, 1983, the total sum of $312.73, which
consists of $93.94 in contributions, $200.00 for the cost of the
audit, and $18.79 in 20 percent liquidated damages.
II. CONCLUSIONS OF LAW.
1. Jurisdiction of this cause is based upon Section 301 of the
National Labor Relations Act as amended 29 U.S.C. § 185(a) and
Section 502 of the Employee Retirement Security Act of 1974,
29 U.S.C. § 1132 and § 1145 (ERISA), as amended.
2. Defendants are liable for all sums to the Cement Masons' 502
Funds, Laborers' Funds, and Cement Masons' 803 Funds for
contributions for all hours worked by employees who have
performed in whole or in part laborers' or cement masons' work.
Burke v. Lenihan, 606 F.2d 840 (9th Cir., 1979); Waggoner v. C &
D Pipeline, 601 F.2d 456 (9th Cir., 1979), Waggoner v. Wm.
RadKovich Co., Inc., 620 F.2d 206 (9th Cir., 1980).
3. Suits to recover damages incurred by Trust Funds created
pursuant to collective bargaining agreements are properly brought
pursuant to provisions of 29 U.S.C. § 185. See Lewis v.
Benedict Coal Corporation, [39 LC 66,240] 361 U.S. 459, 80 S.Ct.
489, 4 L.Ed.2d 442 (1960); Eastern District Council v. Blake
Construction Co., 457 F. Supp. 825 (E.D.Virginia, 1978); Waggoner
v. McGray, [86 LC 11,521] 607 F.2d 1229 (9th Cir., 1979); Jim
McNeff, Inc. v. Todd, ___ U.S. ___, 103 S.Ct. 1753, 75 L.Ed.2d
830 (1983), as well as ERISA which calls for such suits,
29 U.S.C. § 1145.
4. Defendant, on July 1, 1971, and March 2, 1975, with regards
to the Laborers' Union, and June 28, 1972, and March 2, 1975,
with regards to the Cement Masons' Unions, signed Memorandums of
Agreement incorporating by reference the respective Collective
Bargaining Agreements and Trust Agreements, and defendant is,
therefore, bound by these Collective Bargaining Agreements signed
with the Unions. Const. Teamsters v. Con. Form Const. Corp.,
657 F.2d 1101 (9th Cir., 1981); Martin, et al. v. Benesh & Bruns,
Inc., 532 F. Supp. 408 (N.D.Ill., 1982); Mo-Kan Teamsters Pension
Fund v. Creason, 716 F.2d 772 (10th Cir., 1983); Landy Packing
Co. v. Meat Cutters, 627 F.2d 881,
105 LRRM 2427 (8th Cir., 1980); Burns v. Ford Motor Company,
331 N.E.2d 325 (Ill.App.Ct., 1st Dist., 1975). The short form
Memoranda of Agreement are valid and enforceable and the
Collective Bargaining Agreements are incorporated therein as if
signed by the defendant. Ibid.
5. The defendant maintained that the Collective Bargaining
Agreements they signed were unenforceable pursuant to the holding
in Caporale v. MarLes, 656 F.2d 242 (7th Cir., 1981). I find that
this case is distinguishable from the facts herein. The decision
in MarLes is based upon contract principles of offer and
acceptance and was limited to the peculiar circumstance in that
case. In MarLes, the Company was mailed an unsigned Memorandum to
secure benefits for a single employee, was never contacted by the
Union, and was never notified whether the Union had accepted the
Agreement. Here, defendant testified that all the documents were
signed either in the presence of the Union or an agent of the
Union; that they were co-signed by both parties; and that the
defendant knew that he was signing a Union agreement. The 1975
Collective Bargaining Agreements were signed at a time when
defendant had access to, had used, and had contemporaneously
consulted with legal counsel and had been informed that he should
sign the Memorandum of Agreement. The 1975 Collective Bargaining
Agreements were signed after defendants knew of their obligations
to pay contributions to the Funds, and the documents specifically
notified defendant of this obligation.
6. Defendants sought by way of offer of proof to introduce
information regarding duress. While I found the facts did not
constitute duress, I reaffirmed my decision to grant plaintiffs'
Motion in Limine precluding the introduction of evidence as to
duress since duress may not be used as a defense to an action
brought by the Trust Funds. Chicago District Council v.
Dombrowski, 545 F. Supp. 325, (Shadur, N.D.Ill., 1982); Hammond v.
Freiburger Excavating Co., 3 EBC 2196 (S.D.Iowa, 1982). Moreover,
to institute or threaten to institute legal action where the
party has a legal right to take such action does not constitute
duress. Kaplan v. Kaplan, 25 Ill.2d 181, 182 N.E.2d 706 (1962);
Butler v. Metz, Train, Olson & Youngren, Inc., 62 Ill.App.3d 424,
20 Ill.Dec. 187, 379 N.E.2d 1255 (2d Dist. 1978); Alexander v.
Standard Oil Company, 97 Ill.App.3d 809, 53 Ill.Dec. 194,
423 N.E.2d 578 (5th Dist. 1981).
7. Defendant has failed to communicate to the plaintiffs
anything in writing as to disaffirming, voiding, or cancelling
the Collective Bargaining Agreement. Section 8(d) of the National
Labor Relations Act, 29 U.S.C. § 158(d) (1965), provides that
notice of termination or modification of a Collective Bargaining
Agreement shall be in writing. Const. Teamsters v. Con. Form
Const. Corp., supra; Mo-Kan Teamsters Pension Fund v. Creason,
supra. This provision provides to the termination of 8(f)
agreements. Defendant's failure to notify the Unions or the Trust
Funds in writing negates defendant's argument that the Collective
Bargaining Agreements terminated. Const. Teamsters v. Con. Form
Const. Corp., supra; Ted Hicks and Associates, Inc. v. NLRB,
572 F.2d 1024 (5th Cir., 1976); McNeff v. Todd, supra. Further,
notice to an auditor while refusing an audit as to questions
concerning the Agreement, as well as the filing of the Answer in
this case are insufficient to terminate the Agreement. Schlecht
v. Bliss, 271 Or. 304, 532 P.2d 1 (1975); Teamsters' Local Union
745, etc. v. Braswell Mot. Frt. L., Inc., 428 F.2d 1371 (5th
8. Plaintiffs are entitled to recover the sums claimed in the
audit reports (plaintiffs' Exhibits 18, 19, 23, and 24), as well
as 20 percent of that amount in liquidated damages, interest from
the dates due, audit costs, and reasonable attorneys' fees and
costs of litigation. ERISA 29 U.S.C. § 1132(g)(2). See Lewis v.
Benedict Coal Corp., [39 LC Paragraph 66,240] 361 U.S. 459, 80
S.Ct. 489, 4 L.Ed.2d 442 (1960); Eastern District Council v.
Blake Construction Co., 457 F. Supp. 825 (E.D.Virginia, 1978);
Waggoner v. McGray, [86 LC Paragraph 11,521], 607 F.2d 1229
(9th Cir., 1979); Bricklayers v. Thorleif Larsen & Son, 89 LRRM
3113 (7th Cir., 1975); Laborers' Pension Fund v. C.A. Sementa
Contractors, Inc., 82 C 4028, Northern District of Illinois,
Eastern Division, Judge Posner, as well as ERISA which calls for
such suits for delinquent contributions 29 U.S.C. § 1145.
9. Plaintiffs are entitled to prejudgment interest at the legal
rate of 5 percent per annum simple interest from the time
defendant first had clear notice of the sums owed to the Funds
until the date of judgment herein. Nedd v. UMW, 106 LRRM 2399,
506 F. Supp. 891 (D.Ct.Pa., 1980); Bricklayers v. Taiariol, 3 EBC
1363, 671 F.2d 988 (E.D.Mich., 1982), Ill.Rev.Stat. Ch. 74, Sec.
2; Jenson v. Chicago & Western Indiana R.R., 94 Ill.App.3d 915,
50 Ill.Dec. 470, 419 N.E.2d 578 (1981); Laborers v. Sementa,
10. Plaintiffs are entitled to post-judgment interest at the
legal rate of 9 percent until the judgment is satisfied.
28 U.S.C. § 1961.
11. All the Findings of Fact are incorporated as Conclusions of
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