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LABORERS' PENSION FUND v. JOE CACHEY CONSTR. CO.

December 5, 1996

LABORERS' PENSION FUND and LABORERS' WELFARE FUND OF THE HEALTH AND WELFARE DEPARTMENT OF THE CONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCIL OF CHICAGO AND VICINITY, Plaintiffs,
v.
JOE CACHEY CONSTRUCTION CO., INC. an Illinois corporation, and FUTURE MASONRY, INC., an Illinois corporation, Defendants.



The opinion of the court was delivered by: HOLDERMAN

MEMORANDUM OPINION AND ORDER

 JAMES F. HOLDERMAN, District Judge:

 Plaintiffs, Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (collectively Funds), filed a three count second amended complaint against defendants, Joe Cachey Construction Co., Inc. (Joe Cachey) and Future Masonry, Inc. (Future Masonry), pursuant to the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), and the Employment Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132 and 1145. Funds allege violations of collective bargaining and trust agreements. Both Joe Cachey and Future Masonry have filed a motion to dismiss count one of Funds' second amended complaint contending lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the following reasons, defendant Joe Cachey's motion is DENIED as to contributions for Joe Cachey's employees and GRANTED as to Future Masonry's employees and defendant Future Masonry's motion is GRANTED in its entirety.

 BACKGROUND

 Funds also argue that Joe Cachey and Future Masonry are liable for unpaid benefits for laborer employees on the payroll of Future Masonry since they claim that Joe Cachey and Future Masonry are a "single employer" and an "alter ego" of one another. Funds believe that Mr. Cachey controls the labor relations policy-making of both companies and that the companies are interrelated, sharing common employees, equipment, materials, jobs, management including Mr. Cachey, and ownership. Funds maintain that Mr. Cachey operates Future Masonry with the intent to evade the Union contractual obligations of Joe Cachey. Therefore, Funds argue that since Joe Cachey and Future Masonry share the same employees and because the employees regularly receive pay checks from both companies for work on the same projects, the employees of both companies are entitled to have their benefits paid pursuant to the agreement entered into between the Union and Joe Cachey regardless whether the employee's paycheck is from Joe Cachey or Future Masonry.

 Count one of Funds' second amended complaint alleges Funds' theory that Joe Cachey and Future Masonry are in fact a single employer. Funds seek an audit of Joe Cachey's books and records from April 1, 1995 through the present and of Future Masonry's books and records from January 1, 1990 through the present to determine any appropriate unpaid employee benefit contributions. Funds ask that Joe Cachey and Future Masonry be enjoined from any further violations of the collective bargaining and trust agreements and that they be awarded costs and liquidated damages.

 Funds predicate federal subject matter jurisdiction over this action on § 301 of the LMRA, 29 U.S.C. § 185(a), and §§ 502 and 515 of ERISA, 29 U.S.C. §§ 1132 and 1145. Joe Cachey and Future Masonry have each filed a motion to dismiss count one of Funds' second amended complaint on the ground that this court lacks subject matter jurisdiction to decide this claim since Future Masonry is not a signatory to the collective bargaining agreement with Union.

 ANALYSIS

 I. Claims Against Joe Cachey for Contributions for Joe Cachey Employees

 A. Section 301 of the LMRA

 A claim brought pursuant to § 301 of the LMRA must satisfy three requirements before it can be properly asserted in federal court: it must be (1) a claim of a violation of (2) a contract (3) between an employer and a labor organization. 29 U.S.C. § 185(a); Railroad Maintenance Laborers' Local 1274 Pension, Welfare and Educ. Funds v. Kelly R.R. Contractors, Inc., 591 F. Supp. 889, 892 (N.D. Ill. 1984). All three of these requirements are met with respect to Joe Cachey. There is no dispute that Joe Cachey entered into collective bargaining agreements with Union. Funds are third party beneficiaries of the agreement. Funds allege within count one of their second amended complaint that Joe Cachey is in violation of the agreement because it ceased making contributions for its employees to Funds. Section 301 is the statutory mechanism for bringing such a claim of breach of a collective bargaining agreement. Kelly, 591 F. Supp. at 892. Therefore, this court has subject matter jurisdiction over this claim as it pertains to defendant Joe Cachey's contributions to Funds on behalf of Joe Cachey employees. Accordingly, Joe Cachey's motion to dismiss must be denied under § 301 of the LMRA.

 Pursuant to § 502 of ERISA, a civil action may be brought by a participant, beneficiary, or fiduciary to enjoin violations of ERISA or to enforce provisions of ERISA or terms of benefit plans. 29 U.S.C. § 1132(a)(3). Federal courts have exclusive jurisdiction over actions brought pursuant to this provision. 29 U.S.C. § 1132(e)(1). Funds, as third-party beneficiaries, are seeking enforcement of § 515 of ERISA, 29 U.S.C. § 1145 *fn1" , and terms of Joe Cachey's collective bargaining agreement with Union. See generally Central States, S.E. & S.W. Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148 (7th Cir. 1989). Section 502 provides this court with subject matter jurisdiction to hear this claim as it pertains to Joe ...


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