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SHALES v. ASPHALT MAINTENANCE

September 28, 2004.

MIKE SHALES; JOHN BRYAN, SR; AL OROSZ; JOSEPH MANN; TOBY KOTH; GORDON ANDERSON; FOX VALLEY LABORERS' HEALTH AND WELFARE FUND; DAN BREJC; and FOX VALLEY LABORERS' PENSION FUND, Plaintiffs,
v.
ASPHALT MAINTENANCE, INC., d/b/a JOHNSON BLACKTOP, INC.; and DAN JOHNSON, individually, Defendants.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Mike Shales, John Bryan, Sr., Al Orosz, Joseph Mann, Toby Koth, and Gordon Anderson as Trustees of The Fox Valley Laborers' Health and Welfare Fund and, including Dan Brejc, as Trustees of The Fox Valley Laborers' Pension Fund (collectively "the Funds") have sued defendants Asphalt Maintenance, Inc., d/b/a Johnson Blacktop, Inc. ("Asphalt"), and Dan Johnson, individually, for failure to properly deduct, remit, and report wages, or to make necessary contributions to the Funds. Count I alleges violations of the Employment Retirement Income Security Act, 29 U.S.C. § 1145 ("ERISA") and the Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA"). Count II alleges a violation of the Illinois Wage Payment and Collection Act, 820 ILL.COMP. STAT. § 115/1 et seq. ("IWPCA"), and Count III alleges the common law tort of conversion.

On March 30, 2004, a default judgment was granted against defendant Asphalt. Defendant Johnson now brings this motion to dismiss all three counts of the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), arguing that he cannot be personally liable under Count I, and Counts II and III are preempted by the LMRA.*fn1 For the reasons provided in this Memorandum Opinion and Order, the motion is granted.

  FACTS

  The following facts from the complaint are assumed to be true for the purposes of this motion to dismiss. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Johnson is the owner and an officer of Asphalt. (Compl. ¶ 3.) The Construction and General Laborers' District Council of Chicago and Vicinity ("District Council"), Johnson, and Asphalt have been parties to successive collective bargaining agreements ("CBA"), which obligate Defendants to make monthly contributions to the Funds on behalf of their employees covered by the CBA for health, welfare, pension benefits and for deductions and contributions to various affiliated organizations. (Id. ¶¶ 1, 6.) The CBA also requires Defendants to submit monthly remittance reports in which Asphalt was to identify the employees covered under the CBA and the amount of contributions to be remitted to the Funds and the affiliated organizations on behalf of each employee. (Id. ¶ 6.)

  On November 18, 2003, Plaintiffs filed a three-count Complaint alleging that Defendants had failed to correctly report and pay contributions owed to the Funds and the affiliated organizations from April 1, 1998 through the present. (Id. ¶¶ 10-13.) Count I of the Complaint alleges that Defendants' delinquency in reporting and paying these contributions violates ERISA, the LMRA, and the CBA. (Id. ¶¶ 11-16.) Count II alleges that Johnson failed to properly withhold employee's wages for payment of union dues and failed to remit those wages to the Funds, violating the IWPCA. (Id. ¶¶ 42-49.) Count III alleges Johnson failed to remit wages to the Funds and therefore wrongfully converted their property. (Id. ¶¶ 105-08.)

  DISCUSSION

  The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to examine the adequacy of the complaint, not to decide the merits of the case. See Gibson v. City of Chi., 910 F.2d 1520, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, the Court must construe all reasonable inferences drawn from the facts of the complaint in the light most favorable to the plaintiff, and all well-pleaded facts and allegations in the complaint must be taken as true. See Roots P'ship v. Land's End, Inc., 965 F.2d 1411, 1416 (7th Cir. 1992). The allegations of a complaint should not be dismissed unless it appears beyond a doubt that the plaintiff cannot prove any set of facts in support of its claim entitling it to relief. Conley, 355 U.S. at 45-46; Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). I. Count I

  Johnson first argues that Count I should be dismissed because he cannot be held personally liable for ERISA and LMRA violations committed by the corporate defendant. In their response, Plaintiffs concede that only Counts II and III are directed against Johnson personally. (Pls.' Resp. Mot. Dismiss at 2.) Therefore, to the extent that Count I may allege a claim against Johnson, it is dismissed.

  II. Counts II and III

  Johnson next contends that Counts II and III should be dismissed because the LMRA preempts Plaintiffs' state claims of an IWPCA violation and the tort of conversion. The Supremacy Clause of Article VI of the United States Constitution grants Congress the power to preempt state law. Kohl's Food Stores, Inc. v. Hyland, 32 F.3d 1075, 1077 (7th Cir. 1994). In enacting § 301 of the LMRA, which authorizes suits for breach of collective bargaining agreements between employers and unions, Congress exercised this power. Tifft v. Commonwealth Edison, No. 02 C 4110, 2003 WL 187409, at *3 (N.D. Ill. Jan. 27, 2003). Section 301 provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a).

  This section confers federal court jurisdiction over disputes that arise out of collective bargaining agreements and also `"authorizes federal courts to fashion a body of federal law for the enforcement of these agreements.'" Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403 (1988) (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 451 (1957)). To ensure the uniform interpretation of collective bargaining agreements, "`issues raised in suits of a kind covered by § 301 [are] to be decided according to the precepts of federal labor policy.'" Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209 (1985) (quoting Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962)). Section 301 thus preempts a state law claim where the claim "is `founded directly on rights created by collective bargaining agreements' . . . and when the resolution of a state law claim `depends on the meaning of, or requires the interpretation of, a collective bargaining agreement.'" Gonzalez v. Farmington Foods, Inc., 296 F. Supp. 2d 912, 934 (N.D. Ill. 2003) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987) and Loewen Group Int'l, Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir. 1995)); see also Allis-Chalmers, 471 U.S. at 210 ("A state rule that purports to define the meaning or scope of a term in a contract suit . . . is preempted by federal labor law.").

  However, "not every dispute . . . tangentially involving a provision of a collective-bargaining agreement . . . is pre-empted by § 301 or other provisions of the federal labor law." Allis-Chalmers, 471 U.S. at 211. For example, "if a dispute merely requires reference to, or consultation of," the CBA, the preemptive force of § 301 will not be triggered. See Lopez v. Smurfit-Stone Container Co., No. 02 C 7347, 2003 WL 297533, *2 (N.D. Ill. Feb. 10, 2003); see also Livadas v. Bradshaw, 512 U.S. 107, 124 (1994) ("[T]he bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished. . . ."). Moreover, in a case where a "particular contractual provision is so clear as to preclude all possible dispute over its meaning," there may be no need to interpret the CBA. Nat'l Metalcrafters v. McNeil, 784 F.2d ...


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