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June 16, 1997

THOMAS MORIARTY, etc., Plaintiffs,

The opinion of the court was delivered by: SHADUR

 Following a bench trial in this ERISA-based action, counsel for the litigants tendered their respective revised sets of proposed findings of fact ("Findings") and conclusions of law ("Conclusions") for consideration by this Court. In accordance with Fed. R. Civ. P. 52(a), what are set out here will constitute this Court's Findings and Conclusions. To the extent (if any) that the Findings as stated may be deemed conclusions of law, they shall also be considered Conclusions. In the same way, to the extent (if any) that matters later expressed as Conclusions may be deemed findings of fact, they shall also be considered Findings. In both those respects, see Miller v. Fenton, 474 U.S. 104, 113-14, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985).

 Findings of Fact

 1. Thomas J. Moriarty ("Moriarty") is a Trustee and a fiduciary of the International Brotherhood of Teamsters ("Teamsters") Local Union No. 727 Health and Welfare Trust and its Pension Trust (collectively "Funds"). Both Funds are "employee benefit plans" within the meaning of Employee Retirement Income Security Act of 1974 as amended ("ERISA") § 1002(3). *fn1" As a fiduciary of an employee benefit plan, Moriarty is authorized to commence a civil action under ERISA § 1132(a)(3) to enforce the obligations that ERISA imposes upon employers (Fact P2; *fn2" D. Ans. P4).

 2. Funds are third-party beneficiaries of collective bargaining agreements ("CBAs") entered into between the Funeral Directors Services Association of Greater Chicago ("Association") and the Auto Livery Chauffeurs, Embalmers, Funeral Directors, Apprentices, Ambulance Directors, Apprentices, Ambulance Drivers and Helpers, Taxicab Drivers, Miscellaneous Garage Employees, Car Washers, Greasers, Polishers and Wash Rack Attendants Union, Local No. 727 of the Teamsters ("Union")(Fact P1).

 3. Moriarty began his employment with Association's predecessor in 1950 as an accountant and office manager (Tr. 26). In 1960 Moriarty became Association's Executive Director, and he held that position until December 31, 1993 (Fact P2). Moriarty then remained employed by Association as a consultant between January 1, 1994 and December 1995 (Tr. 27). Since 1963 Moriarty has served, and he continues to serve, as Trustee of the Health and Welfare Trust, and since 1964 Moriarty has served, and he continues to serve, as Trustee of the Pension Trust (Tr. 25).

 4. Association is a multiemployer association that comprises, and that represents, approximately 250 members (Fact P6). Association and its predecessor organizations have represented employers in the Chicago metropolitan area funeral home industry in collective bargaining negotiations with Union since approximately 1915 (Tr. 28). Association's activities include but are not limited to negotiating labor contracts, representing employers in labor matters, participating in group insurance programs, educational programs and social programs and seminar tours, and obtaining copies of death certificates for its members (Tr. 29).

 6. Glueckert Funeral Home, Ltd. ("Glueckert") is an Illinois corporation providing services typical of the funeral industry in this judicial district. Glueckert engages in an industry affecting commerce, as defined by Labor Management Relations Act ("Act" *fn4" ) § 185(a). Glueckert is an "employer" within the meaning of ERISA § 1002(5)(Fact P3).

 7. Union is a labor organization representing employees in an industry affecting commerce as defined by Act §§ 152(5) and 185(a)(Fact P4).

 8. In 1970 John Glueckert, Sr. ("Glueckert, Sr.") purchased an already-established funeral home, which he later incorporated in 1975 as Glueckert Funeral Home, Ltd. In March 1987 Glueckert, Sr. moved the funeral home location to 1520 N. Arlington Heights Road, Arlington Heights, Illinois 60004. At all relevant times Glueckert, Sr. has been the joint owner of 99% of the Glueckert stock, with the remaining 1% being owned by Cecelia Ardo (FPTO Modification filed December 10, 1996).

 9. By 1988 Glueckert, Sr. began to consider becoming a member of an association in order, among other reasons, to remain current in developments in the funeral home industry (Fact P5). In late 1988 or early 1989 Glueckert, Sr. filled out an application for membership in Association. Under that application Glueckert agreed to abide and be bound by the provisions of the "Constitution, By-laws, Rules and Regulations of the Association" (Fact P18; J. Ex. 2).

 10. When Glueckert applied for membership in Association, it received a "full privileged" membership applicable to entities engaged in the funeral directing and embalming and related transportation activities (Fact P19). At all material times Glueckert has employed individuals who have performed work covered by the CBAs between Association and Union ("covered work")(Fact P32).

 11. Glueckert's application for full privileged membership was approved by Association on March 22, 1989, and Glueckert maintained that membership continuously through September 1994. Glueckert, Sr. signed Association's membership record on or about March 22, 1989 (Fact P20). Association's membership record card stated that the signer (id.):

acknowledged receipt of a copy of the Constitution, By-Laws, Rules and Regulations of the Funeral Directors Services Association of Greater Chicago, and agreed, as a condition of becoming a member of said Association, to abide and be bound by the Constitution, By-laws, Rules and Regulations now in force or that may hereafter be adopted.

 Glueckert regularly paid Association's membership dues from March 1989 through September 1994 (Fact P19; Tr. 51).

 12. During the course of Glueckert, Sr.'s initial course of considering a possible application for Association membership on Glueckert's part, Moriarty sent Glueckert, Sr. some materials that were typically sent to potential members. That transmittal included a July 7, 1988 letter that provided some background information and, in addition to enclosing a partially completed membership application, was accompanied by the previous six months of Association newsletters (Tr. 35; J. Ex. 1; Tr. 58-60). Among those newsletters, the February 1988 newsletter included a reference to the Association's agreements with Union and another union, discussed the forthcoming increases in wage rates for chauffeurs and cleaning personnel ("effective in the upcoming contract year, March 1, 1988 to February 28, 1989, the final year of the current 3 year agreements"), stated that "additional information regarding the above is included in the copy of the agreements which have been forwarded to you" and went on to say (emphasis in original):

If you have any questions, or need an additional copy of the agreements, please call our office. It should be remembered that employees who are paid overscale are still entitled to the full negotiated increase. A final reminder--in the event of a question on a contract clause, or an interpretation of same, please contact the Association office. We are your representative--the unions represent your employees. Many times, we can head off a problem area if we are consulted in advance, rather than after the fact.

 Immediately after that discussion the February 1988 newsletter went on with a reminder ("you are no doubt aware") that the health and welfare contribution schedule for the funeral directors, embalmers and chauffeurs contracts likewise entered the third year effective March 1. As part of the same newsletter package sent to Glueckert, Sr., the June 1988 newsletter began with a report that "your Embalmer Negotiating team continues to meet with representatives of Teamster Local Union No. 727 on a new wage agreement...," explained the difficulty in the negotiations in light of what were said to be "extreme demands" presented by Union and gave notice that "[a] special Meeting of the Membership will be scheduled later in the month in order to receive and consider a report from your Negotiating Team."

 13. It is frankly disingenuous for Glueckert to disclaim knowledge that a major function of Association on behalf of its membership was and is the negotiation and execution of CBAs--including the customary provisions for employee benefit plan contributions--on behalf of Association's members. Leaving aside Association's contention that such knowledge was universal throughout the industry (something that, although in all likelihood true of most industry participants, could not be susceptible to proof in technical terms), Glueckert, Sr. had to have that knowledge from the very outset of his discussions with Moriarty (including by reason of his review of the materials referred to in Finding 12, which this Court finds Glueckert, Sr.--who by his testimony demonstrated himself to be a careful businessman--must have read through before applying for membership). Indeed, the very fact that Glueckert, Sr. posed the question that he did before joining (see Finding 20), though he framed it only in terms of whether he would have "to be a member of the union" by becoming a member of Association (which it will be remembered is an association of employers, not employees), really confirms his understanding that an integral part of Association's activities consisted of dealing with Union and negotiating CBAs, with all of the concomitant provisions entailed in such agreements. *fn5" And just as Glueckert cannot persuasively disclaim that knowledge that it had at the very outset of its relationship with Association, so the later effort of John Glueckert, Jr. ("Glueckert, Jr.") to distance himself from an Association meeting that dealt with its contractual arrangements with Union and with their binding effect on all Association members (see Findings 37-38) further demonstrates both a like degree of knowledge and an effort to play ostrich in an attempt to avoid the necessary impact of that knowledge on Glueckert's obligations.

 14. It is true but irrelevant that the formal documents that were provided to Glueckert did not contain provisions that embodied Association's authority in the respect at issue here. Before 1988, as part of an effort to simplify Association's Constitution and By-laws, its Constitution and By-laws Committee transferred from the Constitution and By-laws then in effect to Association's Official Statements of Policy the language that granted its labor committee the authority to negotiate and, subject to membership approval, to enter into labor agreements (Tr. 37). Those references to collective bargaining were removed from the Constitution and By-laws merely to simplify those documents and to make them more readable (Tr. 40). *fn6" Thereafter the references to Association's role in collective bargaining appeared in its Official Statements of Policy (Tr. 37; J. Exs. 6, 7). Those Official Statements of Policy authorize its President to appoint a committee representing Association's membership to enter into labor negotiations and to enter into such agreements subject to membership approval, as well as to resolve any disputes or grievances that may arise from such labor agreements (J. Exs. 6 at 40 and 7 at 48).

 15. Association and Union have been signatories to a series of CBAs that were effective both before March 1989 and thereafter through and including the present. Those CBAs are in writing and are signed by representatives of Association and Union (Fact P12). They cover all of Association's employer-members (Tr. 33) and have never covered fewer than all of those members (Tr. 33, 240, 241, 258, 466). Indeed, at the beginning of the negotiation of every CBA entered into between Association and Union from 1967 through 1994, and throughout each negotiation process, Association has uniformly notified Union that Association was bargaining on behalf of all of its employer-members (Tr. 65).

 16. It is true but again irrelevant that Association does not solicit or require individual employer-members to provide specific written authorization permitting Association to engage in collective bargaining on their behalf, nor does it seek specific written ratification of negotiated CBAs by Association's individual employer-members (Fact P13). That authority is conferred both by the fact of membership in Association and by its standard operating procedure, under which the ratification of each CBA occurs during a special membership meeting called for that purpose. At each such meeting Association's negotiating committee presents to the membership the contract proposal negotiated by that committee with Union, after which the members present discuss the proposal and take action to ratify it. That standard operating procedure for ratification is consistent with Association's governing documents (Tr. 52).

 17. Glueckert never notified either Association or Union that Association did not represent Glueckert in its negotiations of labor agreements (Tr. 62, 63). Accordingly Association could not, and did not, at any time notify Union that Association did not represent Glueckert (Tr. 65)--entirely understandably, for as already stated Association at all times recognized (and expressly ...

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