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CENTRAL STATES

January 31, 1990

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND and HOWARD MCDOUGALL, Trustee, Plaintiffs,
v.
BORDEN, INC., a New Jersey Corporation, Defendant and Third-Party Plaintiff, v. LOCAL UNIONS NOS. 89, 135, 144 and 215, et al., Third-Party Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of plaintiffs and counter-defendants, Central States, Southeast and Southwest Areas Health and Welfare Fund and Howard McDougall, Trustee (hereinafter collectively "Central States") to dismiss the counterclaim and counts I through IV of the third-party complaint of defendant and counter-plaintiff, Borden, Inc. It involves issues of preemption of state law claims, implication of causes of action under federal statutes and creation of federal common law.

 This matter began as a collection action in which Central States filed suit under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. ┬ž 1001 et seq., to recover health and welfare contributions allegedly owed by Borden. On November 15, 1988, Borden filed its answer and counterclaims. On November 16, 1988, Borden filed a third-party complaint, naming seven trustees (the "Trustees") and local unions 89, 135, 155 and 215 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the "Unions") as third-party defendants.

 In its counterclaim and in counts I through IV of its third-party complaint, Borden seeks recovery of contributions made to the health and welfare plans and other damages based upon (1) tortious interference with the collective bargaining agreements between Borden and the Unions; (2) breach of the trust agreement; (3) breach of the implied covenant of good faith and fair dealing contained in the Trust Agreement; and (4) failure to refund mistaken contributions.

 Central States moves to dismiss the counterclaim and counts I through IV of the third-party complaint. Central States contends that counts I through III of both the counterclaim and the third-part complaint are preempted by ERISA, and that count IV of both the counterclaim and the third-party complaint should be dismissed because there is no cause of action for a refund of mistaken contributions.

 On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 The following allegations of Borden, along with the reasonable inferences to be drawn therefrom, are taken as true at this juncture. Central States is an employee benefit plan administered by plaintiff, Howard McDougall and seven other trustees named as third-party defendants. On August 31, 1987, Borden assumed certain liabilities of Culbro Snack Foods, Inc. ("Culbro"), including certain rights and obligations under three collective bargaining agreements with the Unions.

 The three collective bargaining agreements required Borden to provide covered employees with health and welfare benefits under certain specified plans offered through Central States and to make contributions sufficient to fund those plans. (Third-Party Complaint at para. 12). The Trust Agreement *fn1" required Central States to receive, hold and manage employer contributions in accordance with the provisions of the collective bargaining agreements for the uses and purposes set forth in the Trust Agreement. (Third-Party Complaint para. 9).

 In July, 1985, Central States issued Special Bulletin 85-4 to all local unions, including the Unions, all employers and all participants under the plans. (Third-Party Complaint at para. 14). This bulletin announced increases in contribution rates for plan years beginning in 1985, 1986 and 1987 for Central States' health and welfare benefit plans, including those plans provided by Borden or Culbro, as Borden's predecessor in interest, for covered employees pursuant to the collective bargaining agreements. (Third-Party Complaint at para. 15).

 In March, 1986, Central States issued Special Bulletin 86-5 which announced new contribution rates for plan years beginning in 1986, 1987 and 1988 that were lower than the rates for those years announced in special Bulletin 85-4. Although Special Bulletin 86-5 was issued to all local unions, including the Unions, it was not issued to any employers, including Borden. (Third-Party Complaint at para. 16). Because Central States failed to give Borden notice of the new reduced contribution rates, during the 1986 plan year and continuing until November 29, 1987, Borden continued to make contributions at the higher rates specified in Special Bulletin 85-4, even though it was required to make contributions only at the lower rates specified in Special Bulletin 86-5. (Third-Party Complaint at paras. 17, 18).

 The Unions were aware that Borden and Culbro had been making contributions at rates specified in Special Bulletin 85-4 and that such rates were sufficiently high to support higher level benefit plans. (Third-Party Complaint at para. 19). Without obtaining any approval of or giving any notice whatsoever to Borden, the Unions unilaterally requested Central States to provide higher level benefit plans to its bargaining unit employees. (Third-Party Complaint at para. 19).

 Central States agreed to the Unions' request to increase benefit levels, even though the Trustees knew that the collective bargaining agreements specified that the covered employees were to receive lower levels of benefits, and despite the fact that they knew Central States was not authorized to provide benefit plans different from those provided under the collective bargaining agreements without the concurrence of both Borden and the Unions. (Third-Party Complaint at paras. ...


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