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TRUSTEES OF THE HUDSON VALLEY DIST. COUNCIL OF BRI

May 3, 1994

TRUSTEES OF THE HUDSON VALLEY DISTRICT COUNCIL OF BRICKLAYERS AND ALLIED CRAFTSMEN, RETIREMENT, WELFARE AND APPRENTICE TRAINING AND JOURNEYMEN UPGRADING FUNDS, and HUDSON VALLEY DISTRICT COUNCIL BRICKLAYERS AND ALLIED CRAFTSMEN, Plaintiffs,
v.
U.W. MARX, INC., Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case presents the questions of whether or not employers can be required to pay duplicate wages if they have hired workers not members of the correct union, and if not what remedies would be appropriate, as well as questions concerning what constitutes a withdrawal from an otherwise automatically self-extending collective bargaining agreement.

 Plaintiff Hudson Valley District Council, Bricklayers and Allied Craftsmen ("District Council") and its associated welfare funds filed this suit against an employer, U.W. Marx, Inc. Plaintiffs seek relief under ERISA, 29 USC 1001 et seq., § 301 of the Taft-Hartley Act (29 USC 185), and under state law. They base their claims upon alleged delinquencies in employee benefit contributions, and upon the alleged violation by the employer of the collective bargaining agreements in hiring employees other than members of the District Council.

 An original collective bargaining agreement was negotiated between the employer and the District Council in 1983. Other collective bargaining agreements between the employer and the District Council ensued in the course of which the employer delegated its bargaining functions to the Construction Contractors' Association of the Hudson Valley (the "Association"), which negotiated a 1990 contract (hereinafter the "collective bargaining agreement" unless otherwise indicated) which was operational at least up through May 31, 1993.

 The collective bargaining agreement specified various percentages of employees to be hired from the membership of the District Council including a percentage from the area where the work was to be done. It contained a provision that it would be "automatically renewed yearly thereafter unless written notice of decision to negotiate a new Agreement . . . is given in writing by Certified or Registered mail . . . not later than sixty (60) days nor more than ninety (90) days prior to the expiration date or any anniversary date thereafter."

 In this action, the District Council seeks the amount of wages its members would have received had those members been hired in place of others whom the employer had hired, allegedly in violation of the collective bargaining agreement. The total amount demanded in the original complaint was $ 9,799.61. *fn1" Plaintiffs thereafter moved to amend the complaint under Fed.R.Civ.P. 15(a) to add claims for additional sums based on additional work done by employees hired from sources other than the District Council, increasing the amount claimed to $ 75,287.90.

 Counsel for the parties have agreed to the following:

 (a) plaintiffs' motion to amend the complaint under Rule 15 be treated as granted;

 (b) the employer's objections be treated as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) which is converted into a motion for summary judgment under Fed.R.Civ.P. 56 by virtue of consideration of matter beyond the pleadings;

 (c) the employer's Rule 12(b)(6) motion and plaintiffs' responses be treated as cross-motions for summary judgment with respect to the two issues mentioned above;

 (d) the question of whether or not any collective bargaining contract provisions were actually violated is not before the court for determination at this time.

 The parties' respective motions are granted to the extent of the following, and in all other respects denied:

 (1) the collective bargaining agreement between the parties expired on May 31, 1993 unless plaintiffs can establish that the employer failed to notify the multi-employer association involved, resulting in confusion;

 (2) sums are due to the plaintiff ERISA employee benefit funds for work, if any, performed by nonmembers of the District Council prior to May 31, ...


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