United States District Court, N.D. New York
February 3, 2004.
ROOFERS LOCAL 195 PENSION, HEALTH AND ACCIDENT, ANNUITY AND JOINT APPRENTICESHIP TRAINING FUNDS, by James Milligan and Rich Anderson as Trustees; UNITED UNION OF ROOFERS, WATERPROOFERS AND ALLIED WORKERS, LOCAL UNION 195, by James Milligan as Business Manager; and NATIONAL ROOFING INDUSTRY PENSION PLAN, by W.H. Branson, Jr., Frank Lawson, Jr., Robert M Dalsin, and John Martini, as Trustees, Plaintiffs
SHUE ROOFING, INC. and SBR ROOFING, INC., Defendants
The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District Page 2
MEMORANDUM-DECISION AND ORDER
The present action arises under the Employee Retirement Income Security
Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and Section 301(a) of
the Labor Management-Relations Act of 1947 ("LMRA"), as amended,
29 U.S.C. § 185(a). It is an action to collect delinquent fringe benefit
contributions and deductions due under the terms of a Collective
Bargaining Agreement and Agreements and Declarations of Trust.
The Roofers Local 195 Pension, Health and Accident, Annuity and Joint
Apprenticeship Training Funds (collectively referred to as the "Funds" or
"Plaintiff Funds") are multi-employer plans, as defined in Section 3(37)
of ERISA, and are employee benefit plans, as defined in Section 3(3) of
ERISA, which receive contributions on behalf of employees to provide
health, pension, annuity and training benefits to those employees. The
United Union of Roofers, Waterproofers and Allied Local Union 195 (
"Union" or "Plaintiff Union") is authorized by its members to receive a
portion of their wages, known as dues deductions, from their employers.
James Milligan is the Business Manager of the Union and is also a Trustee
of the Funds. Defendant Shue Roofing, Inc. ("Shue Roofing") is an
employer "in an industry affecting commerce" and is a signatory to a
collective bargaining agreement ("CBA") with the Union. Accordingly,
Defendant Shue Roofing is obligated to remit contributions to the Funds
and dues deductions to the Union in accordance with 29 U.S.C. § 1145.*fn1
Presently before the Court are Plaintiffs' motion for summary judgment
and Defendants' cross-motion for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure.
Before addressing the merits of the parties' cross-motions for summary
judgment, the Court must determine whether the CBA requires arbitration
of these claims.*fn3
Plaintiffs assert (1) that Defendants hope to enforce arbitration to
dispute their claims for interest and liquidated damages only and (2)
that such claims are against Plaintiff Funds, a non-party to the CBA
and, therefore, are not subject to the grievance procedure set forth
therein. Defendants, on the other hand, argue that Plaintiffs' failure to
comply with the CBA's arbitration provision evidences that the CBA is not
the written agreement reached between the parties.*fn4
Article Xin of the CBA states that "any dispute or claimed violation of
this Agreement by either party shall be determined and resolved" by an
arbitrator. See Collective Bargaining Agreement ("CBA"), attached as
Exhibit "B" to the Reply Affidavit of Warner Shue, sworn to June 13, 2003
("Warner Reply Aff") (emphasis added). This language clearly makes
arbitration of the present claims mandatory. The CBA could have used such
other language as "may" or "at the election of the parties;" however, it
explicitly states that any dispute shall be submitted to arbitration. See
Accordingly, the Court holds that the Union, a party to the CBA, is
obligated by the terms of the CBA to submit its present claims to
arbitration. That being said, however, there is a question as to whether
the Funds, which are not a party to the CBA, are also bound by the CBA's
To determine whether an employee benefit fund is bound to an
arbitration provision in a collective bargaining agreement, the court
must analyze the collective bargaining agreement and the trust agreements
to see whether they mandate arbitration of such claims. See O'Hare v.
Marine Transp. Corp., 740 F.2d 160, 168 (2d Cir. 1984) (citation
omitted). Courts have generally required a fund to submit to arbitration
where (1) the CBA expresses an intention to require arbitration of
disputes brought by the fund against the employer and (2) the fund is
aware of the collective bargaining agreement's terms requiring such
arbitration. See, e.g., Schneider Moving & Storage Co. v. Robbins,
466 U.S. 364, 375 (1984); O'Hare, 740 F.2d at 168.
In determining whether a fund was aware of the terms of the collective
bargaining agreement, courts consider it significant if a party to the
collective bargaining agreement, i.e. a union representative, is also a
trustee of the fund. See Central States, Southeast & Southwest Areas
Pension Fund v. Goggin Truck Line, Inc., 140 F.R.D. 362, 365 (N.D. Ill.
1991). Under such circumstances, the courts have found that the fund is
aware of the terms of the collective bargaining agreement even though it
is not technically a party to the agreement. See id.
In the present case, the CBA references the Trust Fund Agreement and
states that the employer party to the CBA agrees to become a signatory to
the respective Trust Fund Agreements. See CBA at 44. In fact, the CBA
provides that "the signing of this Agreement shall constitute an
obligation to be bound by the terms and conditions . . . of said
Agreements and Declarations of Trust . . . as if said Agreement and
Declarations of Trust were fully set forth herein and made a part
hereof." See CBA at 32. Moreover, the Declaration of Trust agreement
states that the CBA is to provide for the payment of contributions from
the employer to the trustees of the funds. See Affidavit of Patricia
Redhead, sworn to February 20, 2003 ("Redhead Aff"), at Exhibit "A."
Thus, the Funds are not only aware of the CBA's mandatory arbitration
clause, as evidenced by the explicit reference to and reliance upon the
CBA in its Declaration of Trust agreement, but the Funds agreement is
treated, under the terms of the CBA, as being a part
of the CBA.
Furthermore, Patricia Redhead, Plan Manager of the Plaintiff Funds,
stated that the Funds were to receive contributions under the CBA. See
Redhead Aff. at ¶ 7. Most significantly, the Union's business manager,
James Milligan, is also a trustee of the Funds and was signatory to the
CBA between Plaintiff Union and Defendant Shue Roofing and, therefore,
"cannot now plead ignorance of those terms [of the CBA]" mandating
arbitration. See Goggin Truck Line, 140 F.R.D. at 365. Thus, Plaintiffs'
argument that Defendants' claims are only against the Funds, a non-party
to the CBA, and are, therefore, not subject to the arbitration provision
in the CBA is unavailing.
Based on the foregoing analysis, the Court concludes that the CBA
requires arbitration of the claims presently before this Court.*fn5
Accordingly, after carefully considering the file in this matter, the
parties' submissions, and the applicable law, and for the reasons stated
herein, the Court hereby
ORDERS that Plaintiffs' motion for summary judgment is DENIED as moot;
and the Court further
ORDERS that Defendants' motion for summary judgment is DENIED as moot;
ORDERS that the parties are to submit these claims to arbitration
pursuant to the provisions of the CBA.