# Board of Trustees v. B & B Mechanical Services, Inc.

> Court of Appeals for the Sixth Circuit · December 29, 2015 · 813 F.3d 603

URL: https://www.frixlaw.com/law-library/cases/8413834

## Case

- **Full name:** BOARD OF TRUSTEES OF THE PLUMBERS, PIPE FITTERS & MECHANICAL EQUIPMENT SERVICE, LOCAL UNION NO. 392 PENSION FUND v. B & B MECHANICAL SERVICES, INC.
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** December 29, 2015
- **Citations:** 813 F.3d 603; 2015 FED App. 0301P; 60 Employee Benefits Cas. (BNA) 3005; 205 L.R.R.M. (BNA) 3109; 2015 U.S. App. LEXIS 22759; 2015 WL 9466618
- **Precedential status:** Published
- **Opinion:** Dissent by Gibbons
- **Judges:** Cole, Gibbons, Stranch
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JULIA SMITH GIBBONS, Circuit Judge,
dissenting.
Because I believe that there are genuine issues of material fact as to whether B & B intended to be bound by the CBA, I respectfully dissent. After properly concluding that the “written agreement” contemplated by § 302(c)(5)(B) of the LMRA need not be a CBA nor need it contain an employer’s signature, the majority lists multiple writings, including the CBA itself, the trust fund documents, the surety bond, monthly contribution reports, and wage subsidy receipts, which it feels satisfy § 302(c)(5)(B) and bind B & B to contribute to the Funds as a matter of law. This conclusion, in my opinion, ignores factual insufficiencies in the record and overstates the independent legal effect of some of the writings.
First, the majority presupposes that B & B was a member of the MCA at the time it negotiated the CBA. Based on this presupposition, it concludes that the MCA had actual authority to bind B & B to the CBA. Other than the testimony of the MCA’s Executive Director that MCA had a relationship with B & B’s predecessors, however, there is no evidence suggesting that, prior to October 2009, B & B was a member of the MCA. Even the Funds note B & B did not become a formal member of the MCA until October 2009. What is more, the MCA’s executive director testified that he has never received an agreement appointing MCA as B & B’s agent in CBA negotiations.. When viewing these facts in the light most favorable to B & B, there is a genuine question of material fact as to whether the MCA was acting as B & B’s agent while it negotiated the relevant CBAs, and thus, whether B & B was or ever intended to be bound by the CBA.
*615 The majority next concludes that the Health and Welfare Trust Fund Agreement satisfies § 302(c)(5)(B)’s “written agreement” requirement and binds B & B to the CBA. However, this argument also presupposes that B & B was a member of the MCA when it negotiated the CBA. As the majority notes, the trust agreement defines “Employer” as “the Mechanical Contractors Association of Cincinnati and the members thereof,” and the agreement only includes those employers who “[are] required to contribute to the Fund by the provisions of a Collective Bargaining Agreement with the Union.” Because I believe there is a question of fact about B & B’s membership in the MCA, I do not think that the trust agreement independently establishes B & B’s obligation to contribute to the Funds as a matter of law. I would also note that the trust agreement was executed on February 15, 2001, and amended on March 1, 2001, but that B & B’s initial predecessor was not formed until 2002. It would strain credulity to hold that a trust agreement last executed before B & B or its predecessors ever existed can somehow serve as an independent basis to bind B & B to the CBA.
The majority next turns its focus to the monthly contribution reports B & B sent to the Funds for nearly a decade. The reports reference B & B’s obligations under the CBA, but, as the majority correctly points out, the certification clauses in the reports, standing alone, are insufficient to bind B & B to the CBA. See Central States, Southeast & Southwest Areas Pension Fund v. General Materials, Inc., 535 F.3d 506, 509-10 (6th Cir.2008); Dugan v. R.J. Corman R. Co., 344 F.3d 662, 668 (7th Cir.2003) (noting that contribution report language was “weak evidence” of the employer’s obligations under the CBA); see also Firesheets v. A.G. Bldg. Specialists, Inc., 134 F.3d 729, 731-32 (5th Cir.1998) (noting that “the existence of some boilerplate language on the record-keeping documents for the contributions does not bind [the employer]”). For the same reasons, the surety bond B & B purchased in 2002 and revised in 2006 cannot independently bind B & B to the CBA. Like the contribution reports, the bond contains language referencing B & B’s obligations under the CBA. However, when the record as a whole shows a genuine issue as to the employer’s intent to be bound by a CBA, writings with boilerplate references to the CBA should not be independently sufficient to establish, as a matter of law, that an employer is bound under the CBA. See Dugan, 344 F.3d at 668 (noting that “boilerplate will sometimes be irrelevant to the document in which it has been unthinkingly inserted”).
Finally, the majority casts B & B’s receipt of wage subsidies under the Union’s Equality and Stabilization Program as further evidence of B & B’s obligations under the CBA. However, the terms of the E & S agreement dictate that the program does not serve to bind contractors who are not already parties to the CBA. The agreement expressly provides: “The Program only effects [sic] parties to the Collective Bargaining Agreement between the MCA and the Union and does not seek to impose its terms on non-signatory Contractors.”
On my reading of the record, it remains an open question whether B & B intended to be bound or was ever in fact bound by the CBA. Therefore, I respectfully dissent. I would remand the case to the district court for trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8413834. Public record. Not legal advice.