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ROSENTHAL v. ANN SERV. CORP.

October 5, 1983

MICHAEL ROSENTHAL, as Trustee of and Participant in the TAXICAB INDUSTRY LOCAL 3036 BENEFIT FUND, TAXICAB INDUSTRY PENSION FUND, TAXICAB INDUSTRY HEALTH AND WELFARE FUND and TAXICAB INDUSTRY TRAINING AND EDUCATION FUND, Plaintiff,
v.
ANN SERVICE CORPORATION, et al., Defendants



The opinion of the court was delivered by: SAND

LEONARD B. SAND, U.S.D.J.

 SAND, J.

 Plaintiff, Michael Rosenthal, is a participant in and trustee of four funds: 1) The Taxicab Industry Local 3036 Benefit Fund ("Benefit Fund"); 2) The Taxicab Industry Pension Fund ("Pension Fund"); 3) The Taxicab Industry Health and Welfare Fund ("Welfare Fund"); and 4) The Taxicab Industry Training & Education Fund ("Training Fund"). These funds were established pursuant to a collective bargaining agreement signed by the Metropolitan Taxicab Board of Trade ("MTBOT") and the New York City Taxi Drivers and Allied Workers Union, Local 3036 SEIU, AFL-CIO ("Local 3036"). The defendants are nineteen taxicab employers who are or have been members of the MTBOT.

 Plaintiff alleges that defendants violated the collective bargaining agreement by, inter alia, (1) failing to make required contributions to the above named funds, (2) failing to adequately report fund participants' loss of eligibility, and (3) fraudulently manipulating the ratio of fund participants to fund contributors so as to cause "underfunding." Plaintiff bases this action on various provisions of ERISA and also, in the case of (2) and (3), "applicable New York State law." Defendants move for summary judgment, urging the Court to enter judgment in their favor because this Court lacks subject matter jurisdiction and plaintiff lacks standing. *fn1"

 Subject Matter Jurisdiction

 In objecting to this Court's subject matter jurisdiction, defendants concentrate on the language of ERISA, contending that the Act's framers drew a clear distinction between "collectively bargained agreements" and "plans." Actions for contributions to funds established by the former, defendants argue, do not fall within the statute's jurisdictional grant. *fn2"

 We find the alleged distinction far less clear than defendants contend. The provision cited by plaintiff indicates a similarity of treatment of "plans" and "agreements":

 
"Every employer who is obligated to make contributions to a multiemployer 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."

 ERISA § 515, 29 U.S.C. § 1145 (Supp. 1983). The cases defendants refer to in their memorandum provide little support for the alleged distinction. The Second Circuit's recent decision in Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co., 700 F.2d 889 (2d Cir. 1983), merely establishes that a pension benefit fund per se cannot bring suit under ERISA. *fn3" By implication, it reinforces the contention that a participant or fiduciary may sue under ERISA. O'Brien v. Sperry Univac, 458 F. Supp. 1179 (D.D.C. 1978), dismissing for lack of subject matter jurisdiction an action brought solely under a "summary plan description," rests on the fact that this description differed in material respects from the plan itself. It is not by any means "precisely analogous," Defendants' Memorandum at p.19, to the issue before this Court. *fn4"

 We conclude that Congress intended that ERISA provide a maximum amount of protection to covered employees, *fn5" and hold that the collective bargaining agreement providing for contributions to specified funds constitutes a plan under ERISA. Thus, claims involving alleged underfunding, failure to render proper reports, and collusion, may be brought in federal court. *fn6"

 Plaintiff's Standing as an Individual Trustee

 Defendants argue that even if the collective bargaining agreement constitutes an ERISA "plan," plaintiff fails to qualify as a participant or fiduciary under ERISA § 502, 29 U.S.C. 1132, and thus lacks standing to bring this action.

 Defendants urge that permitting plaintiff to bring this suit as trustee for the funds would violate both the Taft-Hartley Act and the actual trust agreements. For the following reasons, we agree.

 The trust agreements covering the Pension Fund, Welfare Fund, and Training Fund have been drafted so as to comply with § 302(c)(5)-(8) of the Taft-Hartley Act, 29 U.S.C. § 186(c)(5)-(8). This statute permits employer payments ...


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