The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs are fiduciaries and plan sponsors of the Glaziers
Architectural Metal and Glass Workers Local Union No. 27 (the
"Union") Welfare Fund and Pension Fund (the "Funds"). They bring
this action under the Employee Retirement Income Security Act of
1974 ("ERISA"), 29 U.S.C. § 1001 et seq., to recover delinquent
Funds' contributions that Defendant, The Glass House, Inc.
("Glass House"), allegedly owes under the parties' collective
bargaining agreement (the "CBA"). Before the Court are
Plaintiffs' and Defendant's cross motions for summary judgment.
In 1999, Glass House's President Steven Holwell discussed Union
membership with the Union's business agent, Michael O'Donnell,
and its business manager, Leonard Mathias. Holwell entered into the CBA with the Union on August 2, 1999. After
signing the CBA, Glass House employed both Union and non-Union
workers to perform glazing work on residential and commercial
projects within the CBA's trade and geographic jurisdictions.
(See CBA, arts. 6 & 8).
The CBA's "Union Recognition" Clause outlines the parties'
The Employer recognizes the Union as the sole and
exclusive collective bargaining representative of all
Glazier and Apprentice Glazier employees (performing
work hereinafter described in Article 6 and within
the geographical area covered in Article 8 of this
Agreement) for the purpose of collective bargaining
in respect to rates of pay, wages, hours of
employment, employment practices, standards of
workmanship, safety practices and other conditions of
(Id., Art. 1 § 1). Additionally, the CBA explicitly binds Glass
House to the companion "Declaration of Trust," which establishes
the Union's Funds. (Id., Art. 18 § 3, ¶ 1e ("The Employer
hereby agrees to be bound by and to the said Agreement and
Declaration of Trust, as though he had actually signed the
same.")). Under the Declaration of Trust, Defendant must make
periodic contributions to the Funds on behalf of specified
employees and submit all necessary books and records to
Plaintiff's accountant to conduct compliance audits. (Id., Art.
18 § 3, ¶ 3).
The Union employed Richard Wolf and Company (the "Firm") to
conduct the compliance audits. The Firm audited Glass House for the glazing work performed by its employees on three separate
occasions August 2, 1999 through September 20, 2001; October 1,
2001 through May 31, 2003; and June 1, 2003 through August 31,
2004. During the audit process, the Firm first confirmed the
accuracy of the hours reported for Glass House employees. (Pl.
56.1(b) Resp., ¶ 16). Next, the Firm assessed the hours and
determined whether there were additional employee hours for which
Glass House still needed to make contributions. (Id.) The Firm
addressed their questions concerning Glass House record keeping
to Glass House management before asking the Union. In the three
audit reports of Glass House, the Firm excluded contributions for
any employee hours if Glass House identified the hours as
"in-shop" or "administrative." The present dispute concerns
$50,060.26 in outstanding Funds' contributions for the period
between June 1, 2003 and August 31, 2004.
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." FED. R. CIV. PROC.
56(c). In deciding a motion for summary judgment, the court
"review[s] the record in the light most favorable to the
nonmoving party and to draw all reasonable inferences in that
party's favor." Vanasco v. Nat'l-Louis Univ., 137 F.3d 962, 964 (7th Cir. 1998). Once the
moving party has produced evidence to show that it is entitled to
summary judgment, the party seeking to avoid such judgment must
affirmatively demonstrate that a genuine issue of material fact
remains for trial. See LINC Finance Corp. v. Onwuteaka,
129 F.3d 917, 920 (7th Cir. 1997). When the opposing party cannot
demonstrate a genuine issue of material fact, summary judgment
for the moving party is appropriate. FED. R. CIV. PROC. 56(c).
Plaintiffs claim that from June 1, 2003 through August 31,
2004, Glass House failed to pay required contributions to the
Funds for CBA work performed by four employees Timothy Medved,
Ronald Nickles, Bob Pechtold, and Michael Russell. The actual
hours worked by the four employees are undisputed. (Plaintiffs
are not seeking contributions for employees Adam Rogalny and Mark
Salazer, whose hours also were identified in the audit.) Glass
House contends that the CBA only requires contributions on behalf
of employees who are Union members, Journeyperson Glaziers or
Apprentices, and who perform commercial glazing work. Glass House
argues that the employees in question are not covered by the CBA
because they are not Union members or Journeyperson Glaziers or
Apprentices. Additionally, Glass House asserts that Holwell's
precontract discussions with Union representatives carved out a
contribution exemption for residential work hours. A. Residential Worker Exemption
Glass House insists that contributions to the Funds are not
required for "residential workers," a phrase first mentioned by
Holwell in his deposition and peppered throughout Glass House's
summary judgment briefing. (See Def. 56.1, ¶ 18). Glass House
asserts that extrinsic evidence of the Firm's past auditing
practices and precontract conversations between Holwell and Union
representatives establish a residential work exemption. However,
the CBA's plain language and Seventh Circuit case law undermine
any use of extrinsic evidence.
The CBA's language is unambiguous and does not provide a
contribution exemption for residential work. If no ambiguity is
found in the terms of the CBA, "then, in determining its meaning
as a matter of law, we need not review extrinsic evidence
suggesting how those terms should be interpreted." Mazzei v.
Rock-N-Around Trucking, Inc., 246 F.3d 956, 960 (7th Cir. 2001).
Article 6 of the CBA "Classification/Scope of Work" states
that "[i]t is mutually understood and agreed that none but
Journeyperson Glaziers or Apprentices will be employed on the
following classifications: general glazing, including setting,
cutting, preparing. . . ." (CBA, Art. 6). Article 6 continues on
for nearly a page and covers an extensive list of glazing work.
The list does not specify a residential glazing work exemption.
In fact, Article 6 actually lists glazing work that appears to be ...