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ROOFERS LOCAL 195 PENSION v. SHUE ROOFING

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
v.
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

I. INTRODUCTION

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.

  II. BACKGROUND

  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 Page 3

  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. Page 4

  III. DISCUSSION*fn2

  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 Page 5

  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 id.

  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 arbitration provision.

  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. Gen. Page 6 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 ...


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