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MORIARTY v. MODELL FUNERAL HOME

March 27, 1997

THOMAS J. MORIARTY, Trustee on behalf of the Trustees of the LOCAL UNION NO. 727, I. B. T. PENSION TRUST, and the Trustees of the TEAMSTERS LOCAL UNION NO. 727 HEALTH AND WELFARE TRUST, Plaintiff,
v.
MODELL FUNERAL HOME, LTD., an Illinois corporation, Defendant.



The opinion of the court was delivered by: BUCKLO

 Thomas J. Moriarty, suing as trustee on behalf of the trustees of the Local Union No. 727, I.B.T. Pension Trust, and the trustees of the Teamsters Local Union No. 727 Health and Welfare Trust ("Funds"), sued Modell Funeral Home, Ltd. pursuant to the Employee Retirement Income Security Act ("ERISA") section 502(a)(3), 29 U.S.C. § 1132(a)(3), and Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for employer contributions said to be due under two employee benefit plans maintained by the trustees. Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1337 and 29 U.S.C. §§ 185(c) and 1132(e)(1). Trial was held following discovery. This opinion constitutes my findings of fact and conclusions of law. *fn1"

 Findings of Fact

 1. Thomas J. Moriarty is a trustee and fiduciary of both Funds. Until the end of 1993, he was also the Executive Director of the Funeral Directors Services Association of Greater Chicago ("FDSA"), an association of funeral directors. Among other activities, the FDSA purports to act on behalf of its employer members in negotiating collective bargaining agreements with the Auto Livery Chauffeurs, Embalmers, Funeral Directors, Apprentices, Ambulance Drivers and Helpers, Taxicab Drivers, Miscellaneous Garage Employees, Car Washers, Greasers, Polishers and Wash Rack Attendants Union, Local No. 727, I.B.T. ("Union").

 2. Mr. Moriarty claims that the principal function of the FDSA is the negotiation of collective bargaining agreements covering chauffeur, embalming and funeral directing employees. The evidence does not support this claim. The FDSA Constitution does not mention the negotiation of collective bargaining agreements. Letters sent to prospective FDSA members do not mention this activity.

 3. An example of the FDSA's own characterization of its activities is contained in a November, 1994 FDSA newsletter (the newsletter is published monthly) in which 20 services offered by the FDSA are listed. I have reproduced the list here because it gives a picture (presumably accurate) of the FDSA's range of activities:

 
2. An excellent, competitive insurance program for funeral home vehicles.
 
3. A funeral home and professional liability insurance plan at premiums that are hard to beat.
 
4. Ongoing liaison with governmental agencies at all levels; federal, state, county and city.
 
5. Compliance information regarding OSHA, FTC, ADA, EPA and other mandates at all levels of government.
 
6. Legislative input on laws affecting funeral service at the federal, state and local levels.
 
7. Research projects with various institutions and related professionals.
 
8. Continuing education programs of high quality on various interesting and ...

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