Second, even if this court was to find that the agreement between Union and Joe Cachey was a prehire agreement, this court would not follow the reasoning expressed by the Eleventh Circuit in Fowler. The Fowler court's determination that the appropriate bargaining unit issue need not be addressed since it was a contract enforcement claim merely circumvents the real issue. As Judge Shadur in Willett stated, "nearly any collective-bargaining related issue can be cast in terms of breach of contract as opposed to unfair labor practice." Willett, 614 F. Supp. at 937.
While a court may decide that two employers constitute a single employer, the decision whether to enforce the agreement on the nonsignatory employer's employees is the critical issue. This decision will affect the employees of the nonsignatory employer who have not been able to voice their views as to whether or not they wish to be bound by the agreement. This court believes that a unit determination is necessary in order to protect the § 7 rights of employees of the nonsignatory party. Employees of an employer who enters into a prehire agreement are still entitled to protection of their interests as provided in § 7 of the NLRA. Such a determination is best made by the NLRB to ensure that the entity which possesses the requisite standards and expertise makes such a decision. See South Prairie Constr. Co. v. Local No. 627, Int'l Union of Operating Eng'rs, 425 U.S. 800, 805, 96 S. Ct. 1842, 1844-45, 48 L. Ed. 2d 382 (1976) (per curiam).
Furthermore, this court does not believe that it is appropriate to expand the holding of Jim McNeff in the manner Funds argument would require. The Supreme Court's decision in Jim McNeff did not address a nonsignatory's obligations under an unrepudiated prehire agreement. The Court merely held that an employer may be obligated to abide by a prehire agreement into which it entered prior to a showing of majority support for the union. In Jim McNeff there was no question of who was bound by the prehire agreement nor was there an attempt to expand the unit beyond the employees of the signatory employer. In the present case, however, Future Masonry is not a party to any agreement with Union. What Funds seek as to Future Masonry is dependent on a determination that employees of a nonsignatory employer desire to be bound under an agreement, an issue on which Future Masonry's employees have had no input.
The § 7 rights of employees of Future Masonry should not be dictated by judicial declaration. The courts should not usurp the role of the NLRB to make bargaining unit determinations. Merely claiming that the controversy really does not involve the determination of an appropriate bargaining unit avoids the essential issue. This court believes it may not ignore the delegation to the NLRB made by Congress. As Judge Shadur in Willett said, "were courts indiscriminately to determine all representational issues, they would subvert the [NLRB's] special status under the [NLRA]." Willett, 614 F. Supp. at 937.
Whether Future Masonry and Joe Cachey are a single employer is not the ultimate issue in Funds' count one. For this court to decide this claim and determine if both Joe Cachey and Future Masonry are bound by the agreements between Union and Joe Cachey, it would be necessary to determine the appropriateness of a bargaining unit. This decision is properly left to the exclusive expertise of the NLRB. Therefore, this court does not have jurisdiction over Funds' claim that Joe Cachey and Future Masonry owe benefit contributions for Future Masonry employees. Accordingly, count one of Funds' second amended complaint as to Joe Cachey and Future Masonry for Future Masonry employee contributions must be dismissed.
B. Section 502 and 515 of ERISA
Funds propose that this court has independent subject matter jurisdiction over this claim based upon §§ 502 and 515 of ERISA. This argument fails because of the inherent flaw that Future Masonry is not a party to the collective bargaining agreement between Union and Joe Cachey. Sections 502 and 515 jurisdiction is predicated upon there being an agreement by the employer to contribute to employee pension plans. Funds argue that in cases such as Central States, S.E. & S.W. Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148 (7th Cir. 1989); Cement Masons' Pension Fund, Local 502 v. Dukane Precast, Inc., 822 F. Supp. 1316 (N.D. Ill. 1993); and Marine Terminal, Welfare Fund v. Tri-River Docks, Inc., 1992 U.S. Dist. LEXIS 5695, No. 90 C 3461, 1992 WL 82389 (N.D. Ill. Apr. 20, 1992), the courts have upheld jurisdiction under ERISA even though there was no enforceable collective bargaining agreement under § 301 of the LMRA. In each of these cases, however, there existed evidence of some other agreement or contract into which the union and the employer had entered and in which the employer had acknowledged an obligation to contribute to pension funds. In this case, there is no assertion that Future Masonry has made any such agreement or contract with Union and Funds. There is no independent jurisdictional basis under ERISA to enforce pension obligations against a nonsignatory employer. Therefore, Funds may not support a claim that Joe Cachey and Future Masonry are liable for contributions for Future Masonry's employees based upon §§ 502 and 515 of ERISA. Accordingly, count one of Funds' second amended complaint as to Joe Cachey and Future Masonry for Future Masonry employee contributions must be dismissed.
Based on the above stated reasons, Joe Cachey's motion to dismiss count one of Funds' second amended complaint is DENIED as to contributions for Joe Cachey's employees and GRANTED as to Future Masonry's employees and defendant Future Masonry's motion to dismiss count one of Funds' second amended complaint is GRANTED. The parties are strongly urged to discuss the settlement of this case. This case is set for report on status at 10:00 a.m. on December 17, 1996.
JAMES F. HOLDERMAN
United States District Judge
DATED: December 5, 1996