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Laborers' Pension Fund v. ABN Building Maintenance, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 7, 2019

LABORERS' PENSION FUND, et al., Plaintiffs,
v.
ABN BUILDING MAINTENANCE, Inc., an Illinois corporation, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          Sidney I. Schenkier, United States Magistrate Judge

         Plaintiffs (a number of benefits funds, the funds' administrator, and the Construction & General Laborers' District Council of Chicago & Vicinity ("the District Council" or "the Union") originally filed this action in August 2017 seeking audits and payment of contributions for benefits and union dues for the period June 17, 2016 going forward (doc. # 1: Complaint). Plaintiffs later amended the complaint to add a new claim (Count III), which seeks to enforce a grievance award issued in March 2019 in favor of the District Council and against ABN Building Maintenance, Inc. (doc. # 42: Amended Complaint). Thereafter, the District Council filed a motion for summary judgment solely as to Count III of the amended complaint (doc. # 46). On August 1, 2019, defendant filed a notice stating that it would not file a response to the motion (doc. # 54). We therefore closed the briefing and took the matter under advisement (doc. # 55). For the reasons set forth below, we grant the Union's motion for summary judgment as to Count III.

         I.

         Summary judgment is appropriate where the moving party establishes that there is no genuine issue as to any material fact and he or she is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue 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). In deciding a motion for summary judgment, we construe the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Sommerfield v. City of Chicago, 863 F.3d 645, 649 (7th Cir. 2017). "[T]he non-movant must go beyond the pleadings ... to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in their favor." Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir. 2014) (internal quotations and citations omitted).

         In order to facilitate review of summary judgment motions, Northern District of Illinois Local Rule ("LR") 56.1 sets forth a procedure for identifying both agreed and disputed factual contentions. Under LR 56.1 (a)(3), the party seeking summary judgment must provide "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law," along with materials that substantiate each factual assertion. The responding party is then required to provide a point-by-point response to the movant's statement, and where the responding party contends that there is a genuine dispute about a factual assertion, the non-moving party must provide "specific references to the affidavits, parts of the record, and other supporting materials relied upon[.]" LR56.1(b)(3)(B). Under LR56.1(b)(3)(C), "[a]ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."

         The District Council has provided the required statement of material facts they assert as uncontested, as well as supporting materials (doc. # 48: Plaintiffs Statement of Material Facts Pursuant to Local Rule 56. (1)(a)(3) ("Pl's Statement"). As stated above, the defendant elected to forego any response to the motion. We have the discretion to enforce "strict compliance with [the] local rules governing summary judgment," Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000), and thus without more we could deem the District Council's asserted facts to be admitted. See McMahan v. Deutsche Bank AG, 892 F.3d 926, 929 n.2 (7th Cir. 2018), quoting Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("We have consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission"). That said, we have reviewed the materials offered by plaintiffs to support their factual assertions, and we find the following material facts asserted by the District Council to be established by the summary judgment record.

         On June 17, 2016, defendant and the District Council signed an Independent Construction Industry Collective Bargaining Agreement, which covered the period from June 1, 2013 through May 31, 2017 ("the 2013 Joint Agreement") (Pl's Statement ¶ 7 and Exs. C1-C2). Thereafter, on April 13, 2018, those same parties signed a second collective bargaining agreement, which covered the period from June 1, 2017 through May 31, 2021 (the "2017 Joint Agreement") (Id. ¶ 8 and Ex. C3). These collective bargaining agreements governed the terms and conditions of employment for defendant's employees in the bargaining unit represented by the District Council and its affiliated local unions (Pl's Statement ¶¶ 7-8).

         Pursuant to the 2013 and 2017 Joint Agreements, "[a]ny dispute concerning the interpretation or application of this Agreement between an employer and the Union shall be adjusted by the particular employer and the Union, in the first instance" (Pl's Statement ¶ 9 and Exs. C2 and C3, Arts. 11, ¶ 1). If the employer and District Council are unable to settle the matter, the District Council may file a written grievance, "which shall be submitted to a Joint Grievance Committee (hereinafter the 'JGC') comprised of three (3) Employer representatives ... and three (3) Union representatives" (Pl's Statement ¶ 9 and Exs. C2 andC3, Arts. 11, ¶2). The 2013 and 2017 Joint Agreements set forth by whom the various representatives are selected and the time in which a written grievance must be filed, and provides that the JGC is empowered to "adopt its own rules of procedure" (Id.).

         The JGC's determination of a grievance must be by "majority vote, provided that the Employer representatives and the Union representatives shall have equal voting power" (Pl's Statement ¶ 10 and Exs. C2 and C3, Arts. 11, ¶ 2). Any grievance decided by majority vote, and any relief awarded by the JGC as a result, "shall be binding and final upon all parties" (Id.). If a party fails to comply with an award within seven days after receiving notice of the JGC's award, that party "shall be responsible for an additional ten percent (10%) liquidated damages on any monetary award and all court costs and reasonable attorney fees actually incurred by the party enforcing the award" (Pl's Statement ¶ 18 and Exs. C2 and C3, Arts. 11, ¶ 5).

         On March 12, 2019, the District Council filed a written grievance asserting that defendant failed to properly pay wage and fringe benefits for the period June 17, 2016 through July 31, 2017 (Pl's Statement ¶ 11, Ex. B (Zarris Dec.) ¶ 3 and Ex. B1). On that same day, the JGC - composed of two voting employer representatives, two voting Union representatives, and one non-voting union representative - conducted a hearing on the grievance (Pl's Statement, Ex. B (Zarris Dec.) ¶ 5).[2] Both sides attended the hearing, and had an opportunity to offer evidence (Pl's Statement ¶ 13 and Ex. B (Zarris Dec.) ¶ 6). After hearing the evidence, a majority of the JGC members upheld the grievance filed by the District Council (Pl's Statement ¶ 14, Ex. B (Zarris Dec.) ¶ 7 and Ex. B2). Based on that determination the JGC required defendant to make payments totaling $651, 855.01, consisting of (a) $376, 257.55 in unpaid benefits, dues, interest, liquidated damages and audit costs; (b) $183, 101.64 in unpaid wages; and (c) $91, 550.82 in liquidated damages and $945.00 in audit costs in connection with the unpaid wages award (Id.).

         The JGC's written award is dated March 15, 2019 (Pl's Statement, Ex. B2), and a copy of it was sent to defendant on that date (Pl's Statement ¶ 15 and Ex. B (Zarris Dec.) ¶ 8). The award states that if defendant failed to make the required payments "within seven (7) days of March 22, 2019," the defendant additionally would be required to pay "liquidated damages equal to ten percent (10%) of the monetary award and all court costs and reasonable attorney fees actually incurred by the party enforcing the award" (Pl's Statement, Ex. B (Zarris Dec.) ¶ 7 and Ex. B2). As of the date plaintiffs filed their summary judgment motion (April 29, 2019), no payment had been made (Pl's Statement ¶ 17 and Ex. C (Flanagan Dec.) ¶ 8).[3]

         II.

         There is no dispute that the Court has subject matter jurisdiction over this action brought under the Employment Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§1132(e)(1) and 2 and 1145, and the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185(a), or that venue is proper in this jurisdiction (doc. # 44: Answer to Amended Complaint ¶¶ 1-2). Indeed, as the Seventh Circuit has held, a "failure to comply with a joint committee award is a breach of a federal labor contract subject to section 301 jurisdiction Merryman Exc, Inc. v. Int'l Union of Operating Engr's. Local 150, 639 F.3d 286, 290 (7th Cir. 2011).

         There also is no dispute in this case that defendant has failed to comply with the JGC award. Defendant offers no explanation for the refusal or any basis upon which we should decline to enforce the award. To be sure, since the parties contracted for a JGC determination that would be binding and not subject to appeal, "we are not permitted to review the ...


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