United States District Court, N.D. Illinois, Eastern Division
August 4, 2004.
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, and HOWARD McDOUGALL, Trustee and CENTRAL STATES SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, and HOWARD McDOUGALL, Trustee, Plaintiffs,
TRANSPORT SERVICE CO. an Illinois corporation. Defendant.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Defendant moves that an order as immediately appealable
pursuant to 28 U.S.C. § 1292(b). That motion is denied.
Defendant seeks certification of the following issue:
"Under the common law or pursuant to ERISA, can an
employer be compelled to make contributions to a
Multi-Employer Pension Fund or Health and Welfare
Fund on behalf of employees whom the District Court
has found to be neither represented by the applicable
union nor members of the bargaining unit to which the
applicable collective bargaining agreement applies?"
But, that issue doesn't need to be certified. The answer is
clearly "no" except, possibly, as a remedy bor a breach of a
collective bargaining agreement. It is also not the issue in this
litigation. Rather, the primary issue is whether there are
drivers whom the employer classifies as Assumption drivers who
are, in fact, because of where and how they actually operate,
members of the bargaining unit to which the applicable collective
bargaining agreement applies and are therefore represented by the
union and are drivers for whom contributions are due.
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