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CENTRAL STATES

May 11, 1994

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, and HOWARD McDOUGALL, trustee, Plaintiffs,
v.
GATEWAY FOODS OF TWIN PORTS, INC., a Wisconsin corporation, Defendant.


MORAN


The opinion of the court was delivered by: JAMES B. MORAN

Plaintiffs Central States, Southeast and Southwest Areas Pension Fund (the Fund) and its trustee, Howard McDougall, bring this action pursuant to § 502 of the Employee Retirement Income Security Act (ERISA). 29 U.S.C. § 1001 et seq. They seek recovery from defendant Gateway Foods of Twin Ports (Gateway Foods) for contributions and interest allegedly owed the Fund for the period February 1, 1989 through December 30, 1989. Plaintiffs and defendant now move for summary judgment and, for reasons stated below, both motions are denied.

 FACTS

 The Fund provides benefits for employees of various employers that contribute to it pursuant to their collective bargaining agreements. It operates on a self-reporting system in which employers identify and provide work histories of employees for whom they owe contributions. The Fund bills employers based on their reports. However, the Pension Fund Trust Agreement requires employers to give trustees access to their records, thereby allowing trustees to verify their reports.

 DISCUSSION

 
Article 29 of the collective bargaining agreement provides:
 
Effective February 1, 1989, the Employer shall contribute to [the Fund] . . . for each employee covered by this Agreement who has been on the payroll thirty (30) days or more, except as provided in this Agreement.

 Article 29 does not cover employees who work "temporarily or in cases of emergency". Article 15 creates another exception to Gateway Foods' contribution requirement: it need not make pension contributions on behalf of casual employees. The Fund does not allege that Gateway Foods owes contributions for employees who were temporary, emergency or casual employees during the period in question. Rather, the employees in question were probationary employees, as defined in Article 15 § 1.C.:

 
All employees shall be on probation for the first 480 straight-time working hours that they work for the employer provided such hours must be completed within ninety calendar days, beginning with the first day worked by the new employee involved.

 The section further provides:

 
Employees on probation shall not receive holiday pay. During this period of probation employees shall acquire no seniority or re-employment rights and may be laid off or discharged at the Employer's discretion. After said period of probation, employees, if retained by Employer, shall become regular employees and shall be placed on the seniority list . . . and shall become a member of the union . . .

 Unlike casual employees, there is no provision excluding probationary employees from Gateway Foods' obligation to contribute to the Fund.

 Plaintiffs argue that because probationary employees are employees covered in the agreement, Gateway Foods must contribute to the Fund on their behalf once they have been on the payroll for 30 days or more. They point out that while the agreement explicitly excludes casual employees from the contribution obligation, and excludes probationary employees from other ...


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