The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before this court on Plaintiff Trustees of the Chicago
Painters and Decorators Pension, Health and Welfare, and Deferred Savings
Plan Trust Funds', ("Trustees") and Defendant LaCosta, Inc.'s ("LaCosta")
cross-motions for summary judgment. In addition, Trustees have filed a
motion to strike a portion of Karla Mota Johnson's Affidavit. For the
reasons stated below, we grant LaCosta's motion for summary judgment and
deny Trustees' motion for summary judgment. Additionally, Trustees' motion to strike is denied as moot.
The Chicago Painting and Decorating Contractors' Association ("Employer
Association") is a trade association of painting and decorating
contractors. Plaintiff is the trustee of the Chicago Painters and
Decorators Pension, Health and Welfare, and Deferred Savings Plan trust
funds. These trust funds are employee benefit trusts to which certain
contributions are made pursuant to collective bargaining agreements.
LaCosta is an Illinois Corporation in the business of providing painting,
janitorial, and supplemental labor services.
Trustees allege that LaCosta is a member of the Employer Association
and as a member has failed to submit to an audit or contribute to the
trust funds pursuant to the Employer Association collective bargaining
agreement ("CBA") between the Employer Association and the Painters'
District Council No. 14 ("Union"). LaCosta contends that it has not
entered into the CBA and has no obligation to submit to an audit or
contribute to the trust funds. LaCosta further contends that it merely
responded to a solicitation by the Employer Association for free
membership and filled out a one page form application entitled "Free 2001
PDCA & FCA Membership Application" ("Association Membership
LEGAL STANDARD Summary judgment is appropriate when the record reveals that there is
no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant
of summary judgment the moving party must identify "those portions of
`the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,' which it believes
demonstrate the absence of a genuine issue of material fact." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). This initial burden may be satisfied by presenting specific
evidence on a particular issue or by pointing out "an absence of evidence
to support the non-moving party's case." Id. at 325. Once the
movant has met this burden, the non-moving party cannot simply rest on
the allegations in the pleadings, but, "by affidavits or as otherwise
provided for in [Rule 56], must set forth specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine
issue" in the context of a motion for summary judgment is not simply a
"metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rather, a genuine issue of material fact exists when "the evidence is
such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th
Cir. 2000). The court must consider the record as a whole, in a light
most favorable to the non-moving party, and draw all reasonable inferences
that favor the non-moving party. Anderson, 477 U.S. at 255;
Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
Both cross motions for summary judgment concern the interpretaion of
whether or not LaCosta is bound by the CBA. Trustees' motion for summary
judgment maintains that LaCosta intended to be bound by the CBA.
LaCosta's motion for summary judgment maintains that it did not intend to
be bound by the CBA.
In discerning whether an employer is bound "through its involvement
with a multi-employer association, to collective bargaining agreements
negotiated between the association and a union", as is the case
in this matter a court must consider agency principles and in
addition determine whether the employer "manifested an unequivocal
intention" to be bound by a collective bargaining agreement. Moriarty
v. Glueckert, 155 F.3d 859, 865-66 (7th Cir. 1998).
Trustees contend mat on January 3, 2001 LaCosta expressly delegated
authority to bind itself to the CBA when LaCosta's President, Kara Mota
Johnson, signed an application for membership with the Employer
Association. LaCosta contends that when it's President signed the
application for free membership with the Employer Association it did not
intend to be bound by the CBA. In Moriarty v. Pepper, 256 F.3d 554, 558 (7th Cir. 2001), an
action very similar to this case, the Seventh Circuit examined whether
the defendant, Pepper, expressly authorized an employer association to
bargain on his behalf simply because he signed the employer association's
membership application. In that case, the Seventh Circuit noted that the
application Pepper signed did not "specifically state" that he would be
delegating his bargaining rights to the association. Pepper 256
F.3d at 558. After reviewing the employer association's constitution and
application for membership, the Seventh Circuit found that Pepper's
signing of the application "did not reveal an express intention" on
Pepper's part to be bound by the employer association's collective
bargaining activities. Id.
In this case, Trustees argue that the Association Membership
Application LaCosta signed unequivocally states mat the applicant is
bound by the CBA. The last sentence of the Association Membership
Application reads as follows:
I have read, understand, and agree to abide by the
Constitution and By-Laws of the Chicago
Council/PDCA and the current Labor-Management
Agreement between Painters' District Council No.
14 and PDCA (copies available on request)
Pl.'s Ex. 3.
The court notes mat, the Association Membership Application that
LaCosta signed did not inform LaCosta that by signing the application it
would be joining a particular class of membership in the Employer
Association. It is undisputed that there are actually three classes
of membership: Active Membership, Associate Membership, and Honorary
Membership in the Employer Association. Pl.'s Rule 56.1 ¶ 44; Pl.'s
Ex. 7 § 3.01. Furthermore, the Constitution and By-Laws of the Employer Association contains separate provisions addressing and
distinguishing the different forms prescribed for applications for Active
Membership and applications for Associate Membership. Pl.'s Ex. 7 §
3.02(b), § 3.04(b). In addition, the Constitution and By-Laws of the
Employer Association provides that only "Active Members" are bound by the
CBA. Pl.'s Ex. 7 § 10.01(a).
The Association Membership Application LaCosta signed did not inform
LaCosta of the different types of membership in the Employer Association
or that by signing the application it was becoming an "Active Member" of
the Employer Association subject to the CBA. The one page free membership
application form that LaCosta signed fails to make it clear to LaCosta
whether the form is an application for Active Membership or Associate
Membership. Pl.'s Ex. 7 § 3,02(b), § 3.04(b). LaCosta was not
provided with a copy of the Constitution and By-Laws of the Employer
Association when LaCosta's President signed the Association Membership
Application. As a matter of fact, LaCosta has never been provided with a
copy of the Constitution and By-Laws of the Employer Association. As to
the Employer Association's failure in providing LaCosta with a copy of
its Constitution and By-Laws, the words "copies available on request"
appearing in parenthesis on the bottom of the one page free membership
form is insufficient and does not provide the employer with clear and
accurate information to make a sound decision on an important matter in
the nature of a binding collective bargaining agreement. The manner in
which the Employer Association solicited LaCosta to free membership in the Employer Association with the ensuing consequence
of being bound by a collective bargaining agreement borders on deception.
LaCosta could not have expressly intended to be bound by the CBA because
the Association Membership Application was deficient in that it did not
inform the applicant, LaCosta, that it was applying to become an "Active
Member" of the Employer Association and hence bound by the CBA nor did it
provide LaCosta with sufficient information to enter into a binding
collective bargaining agreement.
Therefore, Trustees have failed to establish that LaCosta's signing of
the Employer Association Application revealed an ...