The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3512
BRICKLAYERS LOCAL 21 OF ILLINOIS
APPRENTICESHIP AND TRAINING PROGRAM
and MASONRY INSTITUTE, BRICKLAYERS
LOCAL 21 PENSION FUND,
Plaintiffs-Appellees,
v.
BANNER RESTORATION, INCORPORATED,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 C 6633—Martin C. Ashman, Magistrate Judge.
____________
ARGUED MAY 28, 2004—DECIDED SEPTEMBER 22, 2004
____________
Before BAUER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. The plaintiffs brought this action to
compel an audit of Banner Restoration, Incorporated
(“Banner”) to determine ERISA compliance. Banner filed a
counterclaim, seeking a refund of prior payments. After a
bench trial, the district court ordered an audit and denied
2 No. 02-3512
Banner’s counterclaim. Banner timely appealed. For the
following reasons, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
The present dispute involves trust fund litigation to en-
sure that an employer has paid all required fringe benefit
contributions. The employer, Banner, is an Illinois corpora-
tion that performs concrete and masonry restoration work.
The plaintiff trust funds, collectively referred to as “the
Funds,” were established pursuant to a collective bargaining
agreement (“the CBA”) entered into by Illinois District
Council No. 1 of the International Union of Bricklayers and
Allied Craftsmen (“the Bricklayers”) and various other
parties.
Since 1991, Charles Ciancanelli has been the president of
Banner. As president of Banner, Ciancanelli would call
Bricklayer’s Local 21 (“Local 21”) or Local 21’s Apprenticeship
and Training Program, at least four times per year, to
ascertain if any bricklayers were available to perform work.
If bricklayers were available, they would be provided by
Local 21.
On several occasions, Local 21 representatives visited
Banner’s work sites and insisted that Ciancanelli hire Local
21 members, pay union wages and make contributions to
the Funds. Ciancanelli asserted that the representatives
threatened “shut down” of the job sites or union picketing
if Banner would not comply. On one occasion, Ciancanelli
was asked to assume responsibility for the wage and benefit
obligations of another employer working at the same job site
No. 02-3512 3
as Banner. Ciancanelli’s son, Charles Ciancanelli, Jr.,
testified that representatives came to nearly ninety percent
of Banner’s work sites, demanding that Banner employ
Local 21 members. Local 21 representatives also repeatedly
requested that Ciancanelli sign the CBA on behalf of Banner,
but Ciancanelli never did so.
Despite Ciancanelli’s refusal to sign the CBA, Banner
operated in a manner consistent with CBA obligations. In
particular, from June 1991 through March 1998, Banner sub-
mitted monthly fringe benefit contributions and contri-
bution reports to the Funds. The contribution reports noted
the names and social security numbers of union and ap-
prentice employees who performed regular and overtime
work covered by the CBA. Some of the monthly reports
contained the following language:
I hereby certify that this is a true report of all hours
worked by Bricklayers and Bricklayer Apprentices dur-
ing the month and includes no self-employed persons.
The undersigned agrees to the terms of payment to these
funds set forth in the current applicable Collective Bar-
gaining Agreement and to the terms of the applicable
Trust Agreements, and that dues remitted to District
Council #1 were deducted only from the paychecks of
bricklayers and bricklayer apprentices who have au-
thorized such deductions in writing.
1
R.40 at 2-3. Ciancanelli signed the monthly contribution
checks drawn on Banner’s various accounts and submitted
with the contribution reports. Banner’s monthly contributions
corresponded with the rates prescribed in memoranda sent
by the Bricklayers to Banner and signatories of the CBA.
1
Not all monthly contribution reports contained this language.
For a time, Banner submitted its own computer spreadsheets
rather than the union-provided forms.
4 No. 02-3512
Those memoranda detailed the applicable annual wage and
benefit rates required by the CBA.
Banner also remitted union dues on behalf of its employ-
ees to Local 21. Moreover, in February 1995, Banner coop-
erated in a payroll audit by the Funds pursuant to CBA
terms. The audit covered April 1, 1992, through December
31, 1994. No delinquencies were found. In 1997, Ciancanelli
donated a truck and driver to Local 21’s Apprenticeship and
Training Program. In May 1998, Local 21 notified Banner that
it had failed to remit union dues for one employee, and
Banner responded by sending the dues.
In 1997, 1998 and 1999, Banner was notified of hearings
before the Joint Arbitration Board of the Bricklayers con-
cerning charges of CBA violations brought by Bricklayers
Local No. 14. After each of the three hearings, the Joint
Arbitration Board found CBA violations at a job site in
Romeoville, Illinois. After the 1999 hearing, the Joint
Arbitration Board ordered Banner to pay damages to the
Bricklayers. Banner did not challenge any of the Joint
Arbitration Board’s decisions, nor did it pay damages in
accordance with the 1999 order.
In October 1999, the Funds filed this action seeking a
compliance audit of Banner’s payroll from January 1, 1995,
to the present, alleging that Banner had failed to submit
accurate monthly contribution reports and had failed to
make required monthly contributions. Banner filed a coun-
terclaim for a refund of the monthly contribution payments
it previously had paid the Funds on the ground of mistake
of fact or law.
B. District Court Proceedings
The district court held a bench trial. The Funds entered
into evidence agreed stipulations of fact and offered exhibits
No. 02-3512 5
submitted as part of the final pre-trial order; Banner addi-
tionally presented the testimony of Ciancanelli and
Ciancanelli’s son. The Ciancanellis testified that Banner
complied with CBA obligations because of union coercion.
In its written findings of fact after the trial, the district
court rejected, on credibility grounds, the Ciancanellis’ ver-
sion as to why Banner complied with CBA obligations:
After review, this Court finds that Ciancanelli, as
president of Defendant, did not perform any of the acts
narrated above solely in response to Local 21’s threats
of work stoppages and pickets. This Court finds not
credible Ciancanelli’s testimony that, as president of
Defendant, he sent in the contribution reports, paid
union wages and fringe benefit contributions, etc., solely
in response to Local 21’s threats of work stoppages and
pickets considering his demeanor and his son’s demeanor
at trial when testifying on the issue, and considering
that he hired employees through Local 21, that Local 21
asked him to assume responsibility for the correct and
timely payment of wages and fringe benefit contributions
of another employer working at General Jones Armory,
that he donated a truck and driver to Local 21’s
Apprenticeship and Training Program, and that he
continued on his course of conduct for approximately
seven years without complaining to any agency or sim-
ilar authority, even in the face of three adverse decisions
and an order to pay damages by the Joint Arbitration
Board.
R.40 at 5-6 (footnotes omitted). The court thus rejected
Banner’s position that it paid monthly contributions only as
a result of union coercion.
The court then determined that Banner had adopted the
CBA through its course of conduct:
6 No. 02-3512
namely, its continuous submission of contribution re-
ports to Plaintiffs, its adherence to the wage and fringe
benefit contribution rates prescribed by the Collective
Bargaining Agreement when making such payments
and contributions, its practice of remitting union dues
on behalf of its employees to Local 21, and its complete
cooperation in the 1995 payroll audit, which revealed no
delinquencies.
R.40 at 8. Moreover, the court concluded that the contribu-
tions were made according to the terms of the written CBA,
thus satisfying the requirement of section 302(c)(5)(B) of the
Labor Management Relations Act (“the LMRA”), 29 U.S.C.
§ 186(c)(5)(B), that payments to employee representatives be
made only “as specified in a written agreement with the
employer.” As a result, the court concluded that the Funds
were entitled to conduct an audit and that Banner was not
entitled to recoup any of the amounts paid to the Funds due
2
to mistake of fact or law. Banner timely appealed.
II
ANALYSIS
A. Standard of Review
Banner brings a variety of legal and factual challenges to
the district court’s decision. On appeal following a bench
trial, we review the district court’s conclusions of law de
2
After Banner filed its notice of appeal, we ordered the parties
to file jurisdictional memoranda on the issue of whether the
district court had issued a final appealable judgment. Only
Banner responded to our order. Having reviewed Banner’s sub-
mission and the supplements to the record, we conclude that the
district court did in fact issue a final order disposing of all claims
and that Banner’s appeal is not premature.
No. 02-3512 7
novo and its findings of fact for clear error. See Petrilli v.
Drechsel, 94 F.3d 325, 329 (7th Cir. 1996). “[O]ne who con-
tends that a finding is clearly erroneous has an exceptionally
heavy burden to carry on appeal.” Spurgin-Dienst v. United
States, 359 F.3d 451, 453 (7th Cir. 2004). Additionally, a
credibility determination “ ’can virtually never be clear
error.’ ” Id. (quoting United States v. Archambault, 62 F.3d
995, 999 (7th Cir. 1995)).
B. Conduct Manifesting Intent To Be Bound
We begin with the well-established principle “ ‘that a col-
lective bargaining agreement is not dependent on the reduc-
tion to writing of the parties’ intention to be bound,’ . . .
rather ‘[a]ll that is required is conduct manifesting an
intention to abide and be bound by the terms of an agree-
ment.’ ” Gariup v. Birchler Ceiling & Interior Co., 777 F.2d 370,
373 (7th Cir. 1985) (quoting Capitol-Husting Co. v. NLRB, 671
F.2d 237, 243 (7th Cir. 1982)); see also Atchley v. Heritage Cable
Vision Assocs., 101 F.3d 495, 500 n.2 (7th Cir. 1996); Operating
Eng’rs Local 139 Health Benefit Fund v. Gustafson Const. Corp.,
258 F.3d 645, 650 (7th Cir. 2001); Moriarty v. Larry G. Lewis
Funeral Dirs. Ltd., 150 F.3d 773, 777 (7th Cir. 1998); Robbins
v. Lynch, 836 F.2d 330, 332 (7th Cir. 1988).
Prior cases that have held an employer bound to a col-
lective bargaining agreement as a result of conduct have
emphasized, among other factors, the payment of union
wages, the remission of union dues, the payment of fringe
benefit contributions, the existence of other agreements
evidencing assent and the submission of the employer to
union jurisdiction, such as that created by grievance pro-
cedures. See Robbins, 836 F.2d at 332 (determining that an
employer who promised to abide by but refused to sign a
collective bargaining agreement adopted the agreement
8 No. 02-3512
when it paid the union scale, turned over dues under a
checkoff system, negotiated grievances and made some
pension and welfare contributions); Gariup, 777 F.2d at 376
(indicating that an employer became a party to the collective
bargaining agreement when it signed an Assent of Participa-
tion form, returned unsigned Acceptance of Working Agree-
ment forms, made contributions to the pension funds and
paid wages at union rates); Brown v. C. Volante Corp., 194
F.3d 351, 354-56 (2d Cir. 1999) (holding that conduct of an
employer who did not sign two subsequent collective
bargaining agreements but paid contributions and wages at
the rates prescribed by those agreements manifested an
intent to adopt the unsigned agreements); see also Operating
Eng’rs Local 139 Health Benefit Fund, 258 F.3d at 650 (indicat-
ing that an employer’s payment of contributions at the rate
provided in a successor contract manifested acceptance). But
see Moglia v. Geoghegan, 403 F.2d 110, 118 (2d Cir. 1968)
(noting the presence of similar factors yet declining to find
that employer adopted a collective bargaining agreement).
Thus, in analyzing Banner’s conduct for evidence of agree-
ment to the CBA, the district court properly looked to these
and similar factors.
To the extent that Banner challenges the district court’s
conclusion that, by its conduct, Banner manifested assent to
the CBA, we decline to disturb the district court’s judgment.
We recognize, as did the district court, that Ciancanelli never
signed the CBA on behalf of Banner. Our precedent makes
clear, however, that a signature to a collective bargaining
agreement is not a prerequisite to finding an employer bound
to that agreement. See Larry G. Lewis Funeral Dirs. Ltd., 150
F.3d at 777 (“[A] signature at the bottom of the collective
bargaining agreement itself is unnecessary.”); see also
Operating Eng’rs Local 139 Health Benefit Fund, 258 F.3d at
650 (“Acceptance . . . can be manifested by conduct as well
as by words.”).
No. 02-3512 9
Other factors (to which Banner itself stipulated) demon-
strate conduct manifesting assent to the terms of the CBA.
For nearly seven years, Banner submitted monthly contribu-
tion reports to the Funds. In accordance with those reports,
Banner paid fringe benefit contributions to the Funds. The
contributions were made according to the rates prescribed
by the CBA and were detailed in memoranda sent to
signatories of the CBA (and to Banner). Some of the monthly
contribution reports contained certification language indicat-
ing that the contributions were made pursuant to the
3
obligations of the CBA. Additionally, Banner remitted
union dues on behalf of employees and paid wages at the
3
The Funds suggest that “[o]n at least one occasion, Ciancanelli
personally signed the monthly contribution report.” Appellee’s
Br. at 18. However, they make this contention without record cite
in violation of Rule 28(a)(9)(A) of the Federal Rules of Appellate
Procedure, and, upon an independent review of the record, we
did not discover any signed contribution reports.
The apparent absence of a signature to the certification lan-
guage, despite the space provided for one, limits, to some degree,
the significance of the certification language in this case. We also
note, however, that checks signed by Ciancanelli were remitted
with the reports. Together, we consider the certification language
on the monthly reports and the accompanying payments as
entitled to some weight in an analysis of whether Banner’s
conduct manifested intent to abide by the collective bargaining
agreement. Compare Operating Eng’rs Local 139 Health Benefit Fund
v. Gustafson Const. Corp., 258 F.3d 645, 650 (7th Cir. 2001) (indi-
cating that signed certification language on monthly remittance
reports “was entitled to some weight . . . and maybe a lot” in
considering whether employer was bound to a collective bargain-
ing agreement) with Dugan v. R.J. Corman R.R. Co., 344 F.3d 662,
668 (7th Cir. 2003) (concluding that, under the circumstances,
signed certification language was evidence, but only “weak
evidence,” that employer considered collective bargaining
agreement to be in effect).
10 No. 02-3512
rates prescribed by the CBA. It cooperated in an audit by the
Funds in 1995. Moreover, about four times per year, Banner
requested bricklayers from Local 21 or its Apprenticeship
4
and Training Program. It donated a truck to Local 21’s
training program. Finally, Banner took no action to challenge
jurisdiction after the Joint Arbitration Board found it guilty of
labor violation charges under the CBA brought by another
Local in 1997, 1998 and 1999.
Before the district court, Banner attempted to minimize
this objective evidence of intent to be bound, characterizing
the seven-year course of conduct as the product of coercion.
The district court rejected this explanation, largely on
credibility grounds. It disbelieved the Ciancanellis’ testi-
mony that Banner paid union wages, remitted union dues,
made fringe benefit contributions and repeatedly submitted to
jurisdictional authority created by the CBA solely because
union representatives threatened picketing. We see no reason
to reject the court’s credibility determination, especially
given the degree of deference required by the standard of
5
review. See Spurgin-Dienst, 359 F.3d at 453.
4
Banner characterizes this factual finding of the district court as
clearly erroneous. However, the finding corresponds directly
with Agreed Stipulation No. 21:
At least four to five times per year, Ciancanelli called either
or both Local 21 and Local 21 Apprenticeship and Training
Program to see if either had any apprentice bricklayers
available for work. According to Ciancanelli, Local 21 and
the Apprenticeship Program always were cooperative in
providing bricklayers, if any were available.
R.50 at 6.
5
Banner invites us to reject the district court’s credibility deter-
mination on the ground that it is contrary to the parties’ agreed
stipulations. In particular, Banner asserts that the parties stipu-
(continued...)
No. 02-3512 11
Nonetheless, even accepting the Ciancanellis’ testimony,
the Ciancanellis testified that the representatives of the
union threatened picketing or “shut down” of jobs. We have
indicated, however, that threats to strike do not nullify
conduct manifesting assent to a collective bargaining
agreement. In Robbins, an employer attempted to explain
away its compliance with the terms of a collective bargain-
ing agreement, partially on the ground that the union had
threatened to strike. See Robbins, 836 F.2d at 332. We rejected
this excuse:
Lynch was bound, under the approach of Gariup. The
threat to strike is unexceptional. Unions frequently de-
5
(...continued)
lated that “Ciancanelli . . . submitted the monthly contribution
reports in response to threats . . . to shut his jobs down if he did
not do so.” Appellant’s Br. at 17 n.10.
Banner’s purposeful omission is misleading. Stipulation No. 29
actually reads:
Ciancanelli asserts that he submitted the monthly contribu-
tion reports and contacted Local 21 and/or the Local 21
Apprenticeship and Training program for workers in re-
sponse to threats by Local 21 representatives to shut his jobs
down if he did not do so.
R.50 at 8 (emphasis added). Thus, Banner’s complaint regarding
the court’s credibility determination rings hollow. That determi-
nation was consistent with the agreed stipulations and well
within the district court’s discretion.
We note further that Ciancanelli’s assertion is not supported by
objective evidence in the record. For instance, during the seven-
year relationship, Banner never complained to an appropriate
authority about the alleged acts of the union representatives, nor did
it indicate, for instance, on its monthly contribution checks, that
it paid the amounts only under protest. For this additional
reason, we accept the district court’s credibility determination.
12 No. 02-3512
cline to work unless the employer adheres to a collective
bargaining agreement. The threat of “no agreement, no
work” hardly makes adherence to the agreement invol-
untary, as Lynch supposes. This is the threat, express or
implied, of every contractual negotiation. (E.g., “Unless
you pay my price, I won’t sell you my iron ore.”)
Id. at 333. As to the threats of picketing, we note that, during
the seven years of allegedly coercive acts by the union,
Banner never once complained to the National Labor
Relations Board (“NLRB”) or any other authority about the
union’s activities.
In sum, the district court was entitled to conclude that
Banner’s seven-year course of conduct manifested an intent
to be bound to the terms of the CBA. Although Ciancanelli
never signed the CBA, the company’s regular monthly
contributions, payment of union wages, remission of union
dues, failure to challenge jurisdictional authority created by
the CBA and other activities consistent with the conduct of
a signatory constitute acceptance by performance.
C. “Written Agreement” Requirement
Having concluded that Banner’s conduct manifested an
intent to abide by the terms of the CBA, we next must
consider whether Banner’s monthly fringe benefit contribu-
tions comply with section 302(c)(5) of the LMRA. Section
302 of the LMRA generally forbids employer payments to
representatives of employees. See 29 U.S.C. § 186(a). How-
ever, section 302(c)(5)(B) contains an exception for payments
made in conformity with the terms “specified in a written
No. 02-3512 13
6
agreement with the employer.” 29 U.S.C. § 186(c)(5)(B).
Banner argues that the payments it made to the Funds were
not made under a “written agreement.” On this basis,
Banner seeks to avoid any present obligations to the Funds
and, in its counterclaim, seeks a refund of the amounts pre-
viously paid in monthly contributions to the pension fund.
Section 302 of the LMRA ensures that payments to em-
ployee representatives are made for proper purposes. The
Supreme Court has described the policy concerns that ani-
mate section 302:
Those members of Congress who supported the amend-
ment were concerned with corruption of collective bar-
gaining through bribery of employee representatives by
employers, with extortion by employee representatives,
and with the possible abuse by union officers of the
power which they might achieve if welfare funds were
left to their sole control.
....
Congress believed that if welfare funds were estab-
lished which did not define with specificity the benefits
payable thereunder, a substantial danger existed that
6
29 U.S.C. § 186(c) provides in relevant part:
The provisions of this section shall not be applicable . . . (5)
with respect to money or other thing of value paid to a trust
fund established by such representative, for the sole and
exclusive benefit of the employees of such employer, and
their families and dependents (or of such employees, fam-
ilies, and dependents jointly with the employees of other
employers making similar payments, and their families and
dependents): Provided, That . . . (B) the detailed basis on
which such payments are to be made is specified in a written
agreement with the employer . . . .
14 No. 02-3512
such funds might be employed to perpetuate control of
union officers, for political purposes, or even for per-
sonal gain.
Arroyo v. United States, 359 U.S. 419, 425-26 (1959); see also
Mazzei v. Rock-N-Around Trucking, Inc., 246 F.3d 956, 961 (7th
Cir. 2001) (quoting Arroyo, 359 U.S. at 425-26); Gariup, 777
F.2d at 375 (same). In Gariup, we ourselves explained:
Congress required that a written agreement exist be-
tween the employer and the employees’ representative
governing the rights of employees on whose behalf the
contributions were made to ensure “that employee
benefit trust funds ‘are legitimate trust funds, used ac-
tually for the specified benefits to the employees of the
employers who contribute to them.’ ”
Gariup, 777 F.2d at 375 (quoting U.M.W.A. Health & Ret.
Funds v. Robinson, 455 U.S. 562, 570 (1982)). Mindful of these
legislative purposes underlying the provision, we consider
whether Banner’s contribution obligations were “specified
in a written agreement with the employer,” as required by
section 302(c)(5)(B). 29 U.S.C. § 186(c)(5)(B).
We begin with the proposition that “a signed, unexpired
collective bargaining agreement between the parties is not
required to satisfy section 302(c)(5)(B).” Gariup, 777 F.2d at
375; see Moriarty v. Larry G. Lewis Funeral Dirs. Ltd., 150 F.3d
773, 777 (7th Cir. 1998) (“[A] signature at the bottom of the
collective bargaining agreement itself is unnecessary.”); see
also Central States, Southeast & Southwest Areas Pension Fund
v. Behnke, Inc., 883 F.2d 454, 460 (6th Cir. 1989) (indicating
that an interim agreement and a participation agreement
that incorporated a written trust agreement sufficiently com-
ported with section 302(c)(5)(B)). Indeed, in some situations,
even an “expired agreement—one that has no contractual
force—nevertheless can satisfy the statutory requirements.”
No. 02-3512 15
Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 668 (7th Cir.
2003); see also Alaska Trowel Trades Pension Fund v. Lopshire,
103 F.3d 881, 883 (9th Cir. 1996) (indicating that a repudi-
ated pre-hire agreement “provides a sufficient safeguard
against the illegal payments § 302(c)(5)(B) is intended to pre-
vent”); Denver Metro. Ass’n of Plumbing, Heating, Cooling
Contractors v. Journeyman Plumbers & Gas Fitters Local No. 3,
586 F.2d 1367, 1373 (10th Cir. 1978) (indicating that an ex-
pired collective bargaining agreement and trust agreements
incorporated therein satisfy section 302(c)(5)(B) (quoting
Hinson v. NLRB, 428 F.2d 133, 139 (8th Cir. 1970))); cf. NLRB
v. Houston Bldg. Servs., Inc., 128 F.3d 860, 864-65 (5th Cir.
1997) (indicating that valid “make whole” remedy ordered
by NLRB against successor employer who had not signed a
collective bargaining agreement did not offend the policies
behind section 302(c)). Thus, obligations have been enforced
in a variety of circumstances, absent a signature to a current
collective bargaining agreement.
Moreover, section 302(c)(5)(B) does not require a signed
7
agreement; it merely requires a “written” one. 29 U.S.C.
7
We recognize that the existence of a signature to some docu-
ment has been relevant in cases addressing whether an employer
is bound to make fringe benefit contributions. See, e.g., Gariup v.
Birchler Ceiling & Interior Co., 777 F.2d 370, 376 (7th Cir. 1982)
(citing employer’s signature to Assent of Participation form
which referenced the unsigned CBA); Brown v. C. Volante Corp.,
194 F.3d 351, 353 (2d Cir. 1999) (noting submission of signed
contribution reports). Signatures in these cases are certainly rele-
vant to establish the employers’ assent to the terms of the agree-
ments upon which they are found. Cf. Laborers’ Pension Fund v.
Blackmore Sewer Const., Inc., 298 F.3d 600, 606 (7th Cir. 2002)
(indicating in the context of a collective bargaining agreement
negotiated by a multi-employer association that “[s]igning the
(continued...)
16 No. 02-3512
§ 186(c)(5)(B); see Brown, 194 F.3d at 355 (“Section
302(c)(5)(B) does not require that an agreement be signed,
only that it be ‘written’ and set forth ‘a detailed basis on
which . . . payments are to be made’ to a trust fund.”); Nat’l
Leadburners Health & Welfare Fund v. O.G. Kelley & Co., 129
F.3d 372, 375 (6th Cir. 1997) (“The statute does not specify
any signature requirement and the term ‘written agreement’
8
is unambiguous in relation to such.”). As our colleagues in
7
(...continued)
final agreement that has been negotiated certainly qualifies as
conclusive evidence that the employer intended to be bound”).
To the extent signatures are relevant for this purpose, we note
Ciancanelli’s signature to the monthly contribution checks re-
mitted for nearly seven years. Nonetheless, we emphasize that
section 302(c)(5)(B) of the LMRA itself imposes no signature
requirement.
8
Both the Second and the Sixth Circuits have distinguished their
prior case law on this issue. In National Leadburners Health &
Welfare Fund v. O.G. Kelley & Co., 129 F.3d 372 (6th Cir. 1997), the
Sixth Circuit distinguished its prior decision in Merrimen v. Paul
F. Rost Electric, Inc., 861 F.2d 135 (6th Cir. 1988). In Merrimen, the
court had found significant the absence of a signature to the CBA
in the context of the section 302(c)(5)(B) analysis. See id. at 139. In
that case, however, the CBA itself required a signature to a Letter
of Assent in order to demonstrate acceptance of the CBA. See id.
at 136; see also Nat’l Leadburners Health & Welfare Fund, 129 F.3d at
375 (emphasizing this fact). In National Leadburners Health &
Welfare Fund, the Sixth Circuit distinguished Merrimen on that
ground and clarified that Merrimen “does not impose a statutory
signature requirement.” Id. at 375. The court thus concluded that
an employer could be bound by a collective bargaining agree-
ment negotiated by a multi-employer association, despite the
absence of that employer’s signature to the agreement. See id. at
375-76.
(continued...)
No. 02-3512 17
the Sixth Circuit concluded: “[T]he statute is satisfied by a
written agreement to which an employer is bound, not a
written agreement to which an employer is bound which
also carries that employer’s signature.” Nat’l Leadburners
Health & Welfare Fund, 129 F.3d at 376.
In the present case, the parties do not dispute that the
contributions made by Banner to the Funds were made in
accordance with the terms of the written CBA negotiated by
the Bricklayers, including Local No. 21. The record indicates
that Banner paid the monthly contributions as directed by
the memoranda it received; those memoranda detailed the
wage and benefit rates required by the CBA. Additionally,
the contribution reports submitted by Banner for a time,
with its monthly contributions, also referenced the “terms
of payment to these funds set forth in the current applicable
Collective Bargaining Agreement” and “the terms of the
9
applicable Trust Agreements.” R.40 at 2-3. Moreover,
8
(...continued)
Similarly, in Brown, 194 F.3d at 351, the Second Circuit distin-
guished its prior decision in Moglia v. Geoghegan, 403 F.2d 110 (2d
Cir. 1968). In Moglia, the court had relied partially on the fact that
the collective bargaining agreement was unsigned. See Moglia, 403
F.2d at 114-15. In Brown, however, the court suggested that Moglia
rested on the absence of conduct manifesting assent to the terms
of the agreement. See Brown, 194 F.3d at 355 n.1. The court
declared: “We did not . . . graft a signature requirement onto
Section 302(c)(5)(B).” Id.
9
The Funds invite us on appeal to rely upon the existence of the
certification language on some of the monthly contribution re-
ports as a writing sufficient to satisfy section 302(c)(5)(B). See
Appellee’s Br. at 17 (“[T]he language contained within the
monthly contribution reports can and should suffice as a written
agreement.”).
(continued...)
18 No. 02-3512
Banner does not contend that the contributions have been
credited to Funds for any improper purpose.
In this case, the existence of a “written agreement,” albeit
an unsigned one, detailing the terms upon which the fringe
benefit contributions were to be made, and Banner’s payment
of contributions in accordance with that agreement, effectively
concludes our inquiry. See Brown, 194 F.3d at 355 (“[A]n
unsigned, written agreement satisfies Section 302(c)(5)(B)’s
‘written agreement’ requirement.”). Under these particular
circumstances, section 302(c)(5)(B) and the policy concerns
behind that provision are met because the contributions were
made as “specified in a written agreement with the em-
ployer.” 29 U.S.C. § 186(c)(5)(B). Banner cannot invoke
section 302 of the LMRA as a loophole through which to
9
(...continued)
We note for the sake of clarity, however, that section 302(c)(5)(B)
requires that the “written agreement” specify the “detailed basis
on which such payments are to be made.” 29 U.S.C. § 186(c)(5)(B).
Certification language, by itself, does not provide the specificity
necessary to satisfy section 302(c)(5)(B). However, such certifica-
tion language is significant, and may be sufficient, to the extent
that it incorporates other written agreements with the employer—
such as a collective bargaining agreement or trust agreements—
which do set forth the “detailed basis” for payments as required
by section 302(c)(5)(B). See Guthart v. White, 263 F.3d 1099, 1103
(9th Cir. 2001) (“Under the plain words of the statute, any written
agreement with the employer can establish an employee’s
eligibility for Trust benefits, so long as it actually specifies,
directly or by incorporation, ‘the detailed basis’ on which contribu-
tions are to be made.” (emphasis added)); see also Moriarty v.
Larry G. Lewis Funeral Dirs. Ltd., 150 F.3d 773, 777 (7th Cir. 1998)
(suggesting significance of certification language); Operating
Eng’rs. Local 139 Health Benefit Fund v. Gustafson Const. Corp., 258
F.3d 645, 650 (7th Cir. 2001) (similar).
No. 02-3512 19
escape obligations to the Funds. See Gariup, 777 F.2d at 376
(concluding that the employer’s “attempt to use the written
agreement requirement of section 302(c)(5)(B) to circumvent
its responsibilities under the collective bargaining agree-
ment must fail”).
Having reached this conclusion, we find no error in the
district court’s disposition of Banner’s counterclaim. Banner’s
contributions were not made in violation of section
302(c)(5)(B) of the LMRA. Thus, Banner is not entitled to a
return of its payments on that ground.
Conclusion
We conclude that the district court properly ordered
Banner to submit to an audit of its fringe benefit contributions
and properly dismissed Banner’s counterclaim. For the fore-
going reasons, we affirm the judgment of the district court.
AFFIRMED
20 No. 02-3512
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-22-04