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Laborers' Pension Fund v. Blackmore Sewer Construction

July 24, 2002

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-APPELLEES,
v.
BLACKMORE SEWER CONSTRUCTION, INCORPORATED, DEFENDANT-APPELLANT.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 4909--Ruben Castillo, Judge.

Before Harlington Wood, Jr., Kanne and Rovner, Circuit Judges.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED MAY 17, 2001

Blackmore Sewer Construction, Inc. (hereafter "Blackmore") employs a shotgun approach in this appeal of a grant of summary judgment in favor of 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 (hereafter "the Funds"). We conclude that all of Blackmore's arguments miss the broad side of the barn in this appeal, and we affirm.

I.

The Funds are large, multi-employer pension, health and welfare funds. Blackmore was a long-time contributing employer to the Funds, but in March 1998, Blackmore suddenly ceased submitting reports and contributions to the Funds. The Funds brought suit under Section 515 of the Employment Retirement Security Act of 1974 ("ERISA") and Section 301 of the Labor Management Relations Act ("LMRA") to recover unpaid contributions and to force Blackmore to submit reports on which the Funds relied to administer their accounts. See 29 U.S.C. § 1145 and 29 U.S.C. § 185. The Funds, acting as an agent for the Construction and General Laborers' District Council of Chicago and Vicinity (hereafter "the Union") also sought recovery of union dues owed by Blackmore under a collective bargaining agreement with the Union.

We begin by considering the contracts on which the Funds base their claims. On August 15, 1991, Blackmore entered into a collective bargaining agreement (hereafter "the Agreement") with the Union. The original term of the Agreement ran through May 31, 1995, but the Agreement provided that Blackmore would be bound to successive agreements unless it provided the Union with notice of its intent to terminate the Agreement:

This Agreement shall remain in full force and effect through the 31st day of May, 1995 and shall continue thereafter unless there has been given not less than sixty (60) days nor more than ninety (90) days from the expiration date written notice by registered or certified mail by either party hereto of the desire to modify and amend this Agreement through Negotiations. In the absence of such notice the EMPLOYER and the UNION agree to be bound by the area-wide negotiated contracts with the various Associations incorporating them into this Agreement and extending this Agreement for the life of the newly negotiated contract. R. 18, Ex. A, ¶ 9.

Blackmore does not dispute that it never gave this notice, and Blackmore thus became bound to two successor agreements, one that covered the time period from June 1, 1995 through May 31, 1998, and one that began on June 1, 1998 and covered the time period involved in this case. Although contribution rates changed with the successive agreements, the duties and obligations of the participating employers, at least as they relate to this case, remained the same.

Each Agreement bound Blackmore to Declarations of Trust establishing the Funds, and set forth Blackmore's contribution obligations into the respective Funds:

The EMPLOYER agrees . . . to become bound by and be considered a party to the Agreements and the Declaration of Trust creating said Trust Funds as if (he) (it) had signed the original copies of the Trust Instruments and amendments thereto. . . .

The EMPLOYER further affirms and re-establishes that all prior contributions paid to the Welfare and Pension Funds were made by duly authorized agents of the EMPLOYER at the proper rates for the appropriate periods of time and that by making said prior contributions the EMPLOYER evidences the intent to be bound by the terms of the Trust Agreement and Collective Bargaining Agreements which were operative at the time the contributions were made, acknowledging the report form to be a sufficient instrument in writing to bind the EMPLOYER to the applicable agreements. R. 18, Ex. A, ¶ 3.

A master collective bargaining agreement, which was incorporated into Blackmore's shorter memorandum agreement with the Union, established the contribution rates, and also obligated Blackmore (and other employers) to produce their books and records to the Funds on request so that the Funds could determine compliance with the Agreement. Blackmore never terminated its participation in the Funds, and for six and a half years, it remained a contributing employer, regularly submitting a monthly contribution report and paying contributions at the prevailing contractual rates. With each monthly ...


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