United States District Court, N.D. Illinois, Eastern Division
October 5, 2005.
JAMES T. SULLIVAN ET AL., Plaintiffs,
WILLIAM A RANDOLPH, INC., Defendant.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiffs' motion for
summary judgment and motion to strike and on Defendant William A.
Randolph, Inc.'s ("Randolph") motion for summary judgment. For
the reasons stated below, we deny Plaintiffs' motion for summary
judgment and their motion to strike and grant Randolph's motion
for summary judgment.
Plaintiffs allege that as of January 1, 2000, there was a
collective bargaining agreement ("CBA") in effect between
Randolph and its employees' union. Plaintiffs specifically
contend that Randolph agreed to be bound by a CBA in 2000 ("2000
CBA") and another CBA in 2001 ("2001 CBA"). Plaintiffs further
allege that, pursuant to the CBAs, Randolph was obligated to make
contributions into Plaintiffs' pension funds ("Funds") and that
Randolph was obligated to permit the Funds to audit Randolph's
books and records to assess Randolph's compliance with its
contribution obligations. According to Plaintiffs, Randolph
breached the CBAs by failing to make contributions to the Funds
and by refusing to allow the Funds to audit Randolph's records.
After the instant action was commenced, Randolph did allow an
accounting firm hired by Plaintiffs to audit Randolph's records
("Audit") and the Audit report indicated that at least $30,997.76
was due to the Funds as of February 15, 2005. Plaintiffs brought
the instant action alleging violations of the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., and
the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 141 et
Summary judgment is appropriate when the record, viewed in the
light most favorable to the non-moving party, 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).
I. Motion to Strike and Local Rule 56.1
Plaintiffs move to strike ceratin affidavits provided by
Randolph that questions among other things, the authenticity of
certain related documents. Randolph, however, correctly points
out that all of the concerns expressed in Plaintiffs' motion to
strike should have been addressed by Plaintiffs during discovery.
Plaintiffs cannot remedy their own lack of diligence during
discovery by seeking to strike evidence that Plaintiffs neglected to examine and investigate during
discovery. Plaintiffs have not provided any sufficient
justification that would warrant striking the affidavits and,
therefore, we deny Plaintiffs' motion to strike.
In regard to Local Rule 56.1, Plaintiffs make a variety of
evasive responses to Randolph's statement of material facts and,
therefore, such facts are deemed undisputed. Pursuant to Local
Rule 56.1, when a party files a motion for summary judgment, each
party must prepare a statement of material facts and each party
is required to respond to the opposing party's statement of
material facts and either admit or deny each fact. A denial is
improper if the denial is not accompanied by specific references
to admissible evidence or at least evidence that represents
admissible evidence. Dent v. Bestfoods, 2003 WL 22025008, at *1
n. 1 (N.D. Ill. 2003); Malec v. Sanford, 191 F.R.D. 581, 585
(N.D. Ill. 2000) (stating in addition that "[t]he purpose of the
56.1 statement is to identify for the Court the evidence
supporting a party's factual assertions in an organized manner:
it is not intended as a forum for factual or legal argument").
Pursuant to Rule 56.1, any facts included in a party's statement
of facts that are not properly denied by the opposing party are
deemed to be admitted. Local Rule 56.1; Dent, 2003 WL 22025008,
at *1 n. 1; see also Jankovich v. Exelon Corp., 2003 WL 260714,
at *5 (N.D.Ill. 2003) (indicating that evasive denials that do
not directly oppose an assertion are improper and thus the
contested fact is deemed to be admitted pursuant to Local Rule
56.1). A court is not "obliged in our adversary system to scour
the record looking for factual disputes and may adopt local rules
reasonably designed to streamline the resolution of summary judgment motions." Waldridge v. American Hoechst Corp.,
24 F.3d 918, 920, 922 (7th Cir. 1994) (stating in addition that a
local rule pertaining to summary judgment "is more than a
technicality"). Further, the 7th Circuit has held "that a
district court is entitled to expect strict compliance with Rule
56.1." Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809,
817 (7th Cir. 2004) (stating in addition that "[s]ubstantial
compliance is not strict compliance").
In the instant action, a variety of facts are apparently
contested by Plaintiffs, but when the requirements of Local Rule
56.1 are applied, these facts are deemed undisputed. For example,
Randolph asserts in its statement of fact paragraph 4 that
Randolph has not employed covered employees since 1997 and did
not employ covered employees during the Audit period. (D SF 4).
Plaintiffs respond by stating that the facts are disputed in
part. In an effort to avoid the fact that Plaintiffs have no
evidence to contradict Randolph's statement of fact, Plaintiffs
simply make a facial challenge, without proper justification, to
the evidence presented by Randolph.
II. Whether Randolph Was Bound by CBAs
Randolph argues that after 1997, when it made some
contributions for two isolated months, Randolph was not a party
to a CBA associated with Plaintiffs and in particular was not a
party to the 2000 CBA or the 2001 CBA. Randolph argues that it is
not obligated under either the 2000 CBA or the 2001 CBA. In fact
Plaintiffs concede that Randolph is not a signatory on the 2000
CBA. Rather, Plaintiffs argue that Randolph impliedly joined the
CBAs in light of its prior conduct. See Moriarty v. Larry G. Lewis Funeral Directors Ltd., 150 F.3d 773, 777
(7th Cir. 1998) (stating that the "general principles of
contract law permit an employer to adopt a collective bargaining
agreement by a course of conduct plus a writing such as the
certification line on the contribution report; a signature at the
bottom of the collective bargaining agreement itself is
unnecessary"). Specifically, Plaintiffs point out that Randolph
paid contributions to the Funds for work done in June and July of
1997. Randolph also points out that after 1997, Randolph
continued to file monthly reports with the Funds for 2½ years
prior to the Audit period and that Randolph attempted to formally
terminate its participation in the CBAs on February 17, 2005.
We note also that Plaintiffs blatantly misstate the facts in
this case in an effort to cloud the issues at hand. Plaintiffs
argue that "[e]ven if there were no executed agreement covering
2000, which Defendant does not actually contend, Defendant would
still be bound by virtue of having paid contributions and filed
reports for 2½ years prior to 2000 and for the entire year 2000
and for 3½ years thereafter." (Ans. D SJ 4) (emphasis added).
Such a statement suggests that during 2000 and afterwards,
Randolph filed monthly statements and made contributions for
covered work done by members of the bargaining unit. However, a
close examination of Plaintiffs' generalized statement reveals
that it is in fact inaccurate. It is undisputed pursuant to Local
Rule 56.1 that Randolph only employed members of the bargaining
unit that were covered by the CBA during June and July of 1997,
and that Randolph only made contributions during that period.
Although Randolph admits to continuing to file monthly
statements, Plaintiffs fail to mention that the statements indicated that there was no activity requiring contributions.
Randolph did not, as Plaintiffs suggest, employ covered employees
for the five years after 1997 and submit contributions for such
The fact is that such employees did not exist, a point that
Plaintiffs avoid in this case and attempt to push into the
background. Plaintiffs do not stand before the court seeking to
vindicate the interests of specific Randolph employees whose
pension plans are at risk because of inadequate contributions.
The only covered employees that were employed by Randolph were
employed for two months back in 1997. There are no allegations in
the amended complaint that any specific employee of Randolph was
wronged in regard to their pension benefits or put at a
disadvantage because of work reassigned to subcontractors.
Rather, Plaintiffs in their vigilant but misguided efforts to
collect monies for the Funds seek to exploit the provisions of
the CBA in order to extract payments from Randolph for the
subcontractor work at issue. Plaintiffs' entire case is based
upon mere technicalities such as the fact that Randolph continued
to file monthly statements with the Funds after 1997. To the
extent that Plaintiffs are pursuing the instant action under the
terms of the CBAs, Plaintiffs are in theory seeking monies on
behalf of fictitious covered employees that could have been
employed by Randolph during the pertinent period.
Plaintiffs complain that Randolph has not provided them with
sufficient evidence regarding Randolph's lack of participation in
the CBAs, despite the fact that it is Plaintiffs who ultimately
bear the burden of proof in this case. In this way, Plaintiffs
are attempting to put the blame for this case on Randolph by
indicating that if Randolph will provide Plaintiffs with
sufficient documentation, Plaintiffs will "call off the hounds" and halt the instant suit. (Ans. D SJ 3).
However, under such an approach, Plaintiffs admittedly brought
the instant action and continued to pursue the instant action
after the Audit without any evidence showing any contribution
violations. We fully recognize that "[o]nce a pension or welfare
fund shows that an employer's records are deficient and produces
an apparently sound accounting suggesting that money is owed, the
employer could be obliged to explain why its payments to the
funds are nonetheless proper." Laborers' Pension Fund v. RES
Environmental Services, Inc., 377 F.3d 735, 739 (7th Cir.
2004). However, Plaintiffs have not presented an accounting or
other evidence that would allow a reasonable trier of fact to
conclude that Randolph's records were inaccurate or that Randolph
owes contributions. Also, as the court stated in RES, if the
employer offers an explanation for its conduct and "the
explanation appears to be sufficient, then the fund must
demonstrate at trial its entitlement to additional payment."
Id. Randolph has provided an adequate explanation by showing
that it properly subcontracted out work in a manner that did not
violate the CBAs and Plaintiffs have not presented sufficient
evidence for a reasonable trier of fact to conclude that they are
entitled to additional payment. As the Seventh Circuit explained
in RES, a fund cannot simply blindly proceed in an action
because "[o]therwise, in the absence of an explanation by the
employer, the fund would prevail on summary judgment." Id.
ERISA and the LMRA were intended to protect actual employees and
were not intended to arm plans with a weapon so that plans could
range far afield of the statutes' true goals in misguided
attempts to harvest monies from employers to fill their coffers.
In regard to Randolph's course of conduct of making prior
contributions for two months and filing report statements, we do not agree that
there is sufficient evidence for a reasonable trier of fact to
conclude that Randolph intended to be bound by the 2000 CBA. See
Moriarty v. Glueckert Funeral Home, Ltd., 155 F.3d 859, 865
(7th Cir. 1998) (stating that the "test is whether the
employer members of the group have indicated from the outset an
unequivocal intention to be bound by group action in collective
bargaining, and whether the union, being informed of the
delegation of bargaining authority to the group, has assented and
entered into negotiations with the group representative").
Plaintiffs make much of the fact that Randolph filed monthly
statements with the Funds, but the statements clearly indicated
that there was no CBA covered activity during those months.
Plaintiffs also point out that Randolph attempted to formally
terminate its participation in the CBAs. However, such a course
by Randolph was taken after the instant litigation was initiated
and clearly was merely a precautionary effort to take all
necessary efforts to strengthen its position. Randolph did not
concede by such conduct to its prior participation in the CBAs.
Therefore, we conclude that there is insufficient evidence for a
reasonable trier of fact to conclude that Randolph was bound by
the 2000 CBA.
In regard to the 2001 CBA, Plaintiffs claim that Randolph
assigned its Technical Engineering Union bargaining rights.
However, Randolph clearly mistakenly authorized a representative
entity to negotiate the terms of the 2001 CBA, which occurred
merely through Randolph's membership in the Lake County
Contractor's Association. It is undisputed that Randolph never
saw a copy of the agreements at issue prior to the filing of the
suit. (P R SF 31-34). To the extent that Randolph's rights were assigned, the assignment was clearly
inadvertent and there is no evidence showing Randolph's intent to
be bound by the 2001 CBA.
III. Contributions for Subcontractor Work
Randolph argues that even if it was bound by the 2000 CBA and
2001 CBA, Randolph was not required to make contributions for the
subcontractors that were identified in the audit. Pursuant to
29 U.S.C. § 1145 ("Section 1145"), "[e]very employer who is
obligated to make contributions to a multi employer plan under
the terms of the plan or under the terms of a collectively
bargained agreement shall, to the extent not inconsistent with
law, make such contributions in accordance with the terms and
conditions of such plan or such agreement." 29 U.S.C. § 1145.
Employers are required to make contributions under Section 1145
"only on behalf of those employees indicated by the agreements."
Central States, Southeast and Southwest Areas Pension Fund v.
Hartlage Truck Serv., Inc., 991 F.2d 1357, 1360 (7th Cir.
1993). If a CBA is unambiguous regarding the category or
categories of employees for which contributions are owed, the
court must enforce the CBA provisions only and cannot require
additional contributions. Id. at 1361. A CBA is deemed to be
unambiguous "[i]f the language of such an agreement lends itself
to one reasonable interpretation only. . . ." Young v. North
Drury Lane Productions, Inc., 80 F.3d 203, 205 (7th Cir.
In the instant action, Plaintiffs have not pointed to
sufficient evidence that shows Randolph was required to make
contributions to the Funds during the pertinent period. The only work identified in the Audit for which
contributions are allegedly owed was work done for Randolph by
subcontractors. Under both the 2000 and 2001 CBAs, Randolph was
allowed to subcontract out work. (2000 CBA Sec. 5; 2001 CBA Sec.
5). In regard to contributions, the 2000 CBA and the 2001 CBA
provide in a clear and unequivocal manner that Randolph was
required to make contributions "for each employee and
supervisor covered under" the CBA. (2000 CBA; 2001 CBA)
(emphasis added). In addition, under the 2000 CBA, Randolph was
required to make contributions to the Safety Council "for each
hour worked by all employees of the Employer covered by" the
CBA. (2000 CBA Sec. 4.2) (emphasis added). In both the 2000 CBA
and the 2001 CBA, the sections devoted to addressing
subcontracting out work do not indicate that any contributions
are owed to the Funds for the work of subcontractors. (2000 CBA,
2001 CBA). Plaintiffs admit pursuant to Local Rule 56.1 that no
employees of Randolph were covered by the CBA during the Audit
period. (R SF 4). The auditor's report that is attached to
Plaintiffs' amended complaint indicated that the hours in
question that were identified in the Audit were hours performed
by subcontractors rather than employees of Randolph. (A Compl.
Ex. B). The CBAs are clear and unequivocal that Randolph was
obligated to make contributions to the Funds for its employees
and supervisors and nothing in the CBAs required contributions
for work performed by subcontractors.
Plaintiffs argue that the hours performed by the subcontractors
were covered under the CBAs and Randolph was required to make
contributions for those hours. Plaintiffs contend that under the
terms of the CBA, the work of subcontractors is governed by the following provision:
i. Employers reserve the right to contract out line and grade
work and the Union recognizes this reservation and agrees not to
interfere with the exercise thereof when outside the direct
control of the Employer.
ii. The Employer reserves the right to contract out survey work
and line and grade work to any licensed professional Engineer or
Surveyor and all members of said survey crew shall also be
(Ans. D SJ 7). Plaintiffs also argue that the terms of Standard
Agreement between The Construction Employers' Association and The
Chicago & Cook County Building & Construction Trades Council
Establishing the Joint Conference Board ("Standard Agreement")
are incorporated into the CBAs, which further restrict Randolph's
right to subcontract. We agree with Randolph that the terms of
the Standard Agreement placing such severe restrictions on
Randolph's ability to subcontract out work is entirely
inconsistent with the intent expressed in the CBAs' provisions
providing Randolph with subcontracting rights and the traditional
right of management to subcontract out work. Plaintiffs have not
shown that Randolph would be bound by the restrictions of the
Standard Agreement, which was not signed by Randolph's
In addition, even if Randolph is bound by the Standard
Agreement and the above provisions, Plaintiffs have not pointed
to sufficient evidence to support their claims. Plaintiffs argue
that "Defendant presents no competent evidence that its
subcontracting of covered work" complied with the above
provisions. (Ans. D SJ 8). However, at the summary judgment stage
it is Plaintiffs as non-movants that bear the burden of showing that they have sufficient evidence to present
to the trier of fact so that the trier of fact can rule on more
than mere speculation. Plaintiffs thus improperly criticize
Randolph for failing to present evidence regarding its
subcontractor work, when it is Plaintiffs that bear the burden of
producing evidence to support their claims. Although, as
recognized above, the burden can at certain points shift to an
employer, Plaintiffs have failed to present sufficient evidence
to warrant a shift of the burden of proof. Plaintiffs contend,
for example, that there is a legitimately disputed issue of fact
as to whether the subcontracting work was done outside of
Randolph's control, which would comply with the CBAs. (Ans SJ.
8). However, Plaintiffs fail to point to evidence to the contrary
that shows that the pertinent subcontractors were performing work
within Randolph's control in violation of the CBAs. (Ans SJ. 7-8)
The parties in this action have been allowed time to conduct
discovery in the instant action, and Plaintiffs should have
acquired all needed information to support their case during
discovery. In the absence of evidence on such an issue,
Plaintiffs cannot simply contend there are disputed facts,
proceed to trial, and ask the trier of fact to engage in idle
speculation. Plaintiffs fail to identify sufficient evidence to
support their position and thus Plaintiffs are incorrect in their
assertion that "at best it is a question of fact and at worst it
entitles Plaintiffs to summary judgment." (Ans. D SJ 7). At best,
in the absence of evidence, it is Randolph that is entitled to
summary judgment. Similarly, Plaintiffs argue that although
Randolph claims that it did not employ any covered employees
during the period in question the fact "is not adequately
supported by any testimony or evidence meeting the standards of
Rule 56(e)." (Ans. D SJ 3). First, Plaintiffs in their typical
"smoke-and-mirror" style have failed to offer any specific
objection to any specific evidence presented by Randolph.
Instead, Plaintiffs merely refer the court to other documents and
other briefs. Second, as is indicated above, Randolph does not
bear the burden of proof in this case. Third, although Plaintiffs
apparently hint that they desire to contest the fact, Plaintiffs
have expressly admitted that the fact as presented by Randolph is
uncontested pursuant to Local Rule 56.1. Thus, it is completely
ridiculous for Plaintiffs to hint that the issue of whether
Randolph employed covered employees during the Audit period is
unresolved and should be investigated at trial.
We also disagree with Plaintiffs' contentions that Randolph has
not provided evidence that shows that the pertinent subcontractor
work was not done in accordance with the CBAs. Randolph has
presented such evidence to the court and Plaintiffs have not
controverted such evidence. Again, in the face of such evidence,
Plaintiffs attempt to avoid the termination of their case by
claiming that there are disputed issues where none genuinely
Plaintiffs also attempt to cover up the deficiencies in their
case by contending that the "auditor specifically requested
documentation regarding any developer or owner requirements that
Randolph utilize particular contractors [sic]." (Ans D SJ 8).
Plaintiffs also complain that the auditor requested certain
documentation, "but Defendant produced nothing." (Ans D SJ 3).
However, whether Randolph produced such information to the
auditor is largely irrelevant. Plaintiffs could and should have
sought such information from Randolph during discovery. The
relevant question is whether Randolph produced such information during discovery
through formal discovery requests and whether the information
indicated that the subcontracting of work was not proper under
the CBAs. Yet, Plaintiffs fail to indicate that they ever
formally requested such information from Randolph during
discovery. (Ans D SJ 7-8). Even if Plaintiffs had requested such
information during discovery and had obtained such information,
Plaintiffs have failed to identify such matters to the court in
their answer brief alongside their arguments on this point. (Ans.
D SJ 7-8). It is not this court's obligation to do Plaintiffs'
work for them and search for supporting evidence that might aid
Plaintiffs' case. The Seventh Circuit has made it clear that when
ruling on a summary judgment motion a court is not required to
"scour the record looking for factual disputes." Waldridge v.
American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994);
see also Estate of Moreland v. Dieter, 395 F.3d 747, 759
(7th Cir. 2005) (indicating that a court is not obligated to
"scour a record to locate evidence supporting a party's legal
argument"). Plaintiffs must include more in their answer brief
than unsupported conclusory statements and proclamations that
there are disputed facts that bar a termination of this action.
Therefore, we grant Randolph's motion for summary judgment and we
deny Plaintiffs' motion for summary judgment.
Based on the foregoing analysis, we grant Randolph's motion for
summary judgment and deny Plaintiffs' motion for summary
judgment. All other pending motions are denied as moot.
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