# Opposition Brief — Kohn Beverage Co. v. Teamsters' Local No. 348 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2450%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1017 ## Text B4a-1356 CASE NO. IN THE SUPREME COURT OF THE UNITED STATES \ October Term, 1985 THE KOHN BEVERAGE COMPANY Petitioner Vv. , TEAMSTERS LOCAL NO. 348, et al Respondents RESPONSE TO PETITIONER'S WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES William B. Gore 503 Centran Building Akron, OH 44308 (216) 434-7167 Attorney for Respondent RESPONSE TO QUESTIONS PRESENTED FOR REVIEW I. The Court of Appeals correctly determined that the collective bargaining agreement between Kohn and Teamsters Local 348 required payment of contributions for all employees of the unit, irregardless of union membership. II. The Court of Appeals correctly refused to apply estoppel principles against the Local 348 Health and Welfare Fund and the Central States Pension Fund because Kohn failed to establish the necessary and essential elements. PARTIES: Pursuant to Rule 34.1(b), Rules of the Supreme Court, the parties to this action are listed below: Petitioner, Respondents, The Kohn Beverage Company 1065 Jenkins Boulevard Akron, OH 44306 (216) 724-1233 International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union 348 272 West Market Street Akron, OH 44303 (216) 693-5300 ii TABLE OF CONTENTS Response to Questions Presented for Review . «© «© «© © © © © ee @ POSCAGG. «© © © se ts tee 8 8&6 Table of Contents. . . «+2 2 « « Table of Authorities ...... Statutes ..« s+ es es ee ee @ fb Opinions Below ...«.«++s+e«e . Statement of Case. . ..... > Reasons for Denying Petitioner's Writ of Certiorari ....... Certificate of Service ..... Appendices . «+.+«+s+*se#s8#s8e8 © «@ « iii , : i » Se - iii -iv-v +: Je - vii - 1-4 -5-24 - 28 a? J ee i ” re ¥ hd oe, . ¢ 7 i 7 as — 7 Saag . Ss sid = fa x . Y) + TABLE OF AUTHORITIES Cases Audit Services, Inc. v. Rolfson, 641 F.2d 757 (9th Cir. 1981) ... Central States v. Central Transport 698 F.2d 802 (6th Cir. 1983), cert. granted, U.S. ° —— 104 S.Ct. 3531 (1984)... ...-s. Continental Baking Co., 99 NLRB 777, 30 LRRM 1119 (1952). . . « « «© « Crosset Lumber Co. v. United States, 87 F.2d 930 (8th Cir. 1937)... . Dickerson v. Colgrove, 100 U.S. 578 (1879) . > > > . . > . . > . > > > Employer-Teamsters Joint Council No. 84, Health and Welfare Fund v. Weatherall Concrete, Inc., 468 F. Supp 1167 (S.D.W.V. AO7Bde w we eee eeeneee ee Farmer v. ARA Services, 660 F.2d 1096 (6th Cafe 1981). . . . . os . . . . Hodgins v. Central States, 624 F.2d 760 (6th Cir. 1980). . . . . . . . . . Knoll _v. Phoenix Steel Corp., 465 F. 24 1128 (3rd Cir. 1972), cert. denied, 409 U.S. 1126 (1973) ... iv Page 19 19 20-21 22-22 2 O avers Tor 7 r Pe wre a _e ey ary a. ; wee ea io) o | = Manning v. Wiscombe, 498 F.2d 1132 CAGGR Cae. 2900) « © © © © © 8 @ Markt v. Ro-Mart, Inc., 471 F. Supp. 1292 (N.D. Cal. 1979). >. >. . . . >. Moglia v. Geoghegan, 403 F.2d 110 (2nd Cir. 1968), cert. denied, 3964 8.8. BAD CASGOd. « © we we wees NLRB v. General Motors, 373 U.S. 734 (1963) . . >. >. .* . >. . . . . . . >. NLRB v. Hershey Foods, 513 F.2d 1083 (9th Cir. 1975). . >. . . . . . . >. Phillips v. Kennedy, 542 F.2d 52 (8th Cir. 1976). >. >. > . >. . . >. >. Radio Officers Union v. NLRB, 347 U.S. 1? (1954). . . . . . . . . . . . . Reiherzer v. Shannon, 581 F.2d 1266 (7th Cir. 1970). . . . . . . . . . Rosen v. Hotel and Restaurant Employees, 637 F.2d 592 (3rd Cir. 1981)... Scheuer v. Central States Pension Fund, 394 F. Supp. 193 (£.D. Wis. 1975, aff‘d. 570 F.2d 347 (7th Cir. nee 6.4 6 6 & Ss © 6686 6 6 @'8 Scott County v. Advance-Rumley Thresher Co., 288 F. 739 (8th Cir. 1923). . Thurber v. Western Conference of Teamsters Pension Plan, 542 F.2d 2206 (90h Cae. 3976) «© © © © wo 2 @ 16-17 11-12 11-12 16 12 15 15 15 20 17-18 STATUTES Page Employee Retirement Income Security Act, as amended, §§502, 515. 29 USC $§$§1132, 1145. .~. . « « «© - 2 Labor Management Relations Act, as amended, §8(a) (3). 29 USC §158 TS) 43) « we ee ll ee ll lt lh Eee Labor Management Relations Act, as amended, §8(b)(3) 29% USC ee Fo oe & > Sa ere en ee a Labor Management Relations Act, as amended, §9(a). 229 USC §159(a) OV Labor Management Relations Act, as amended, §9(b). 29 USC §1_9(b) 6 Labor Management Relations Act, as amended, §301(a). 29 USC §185 (a). e oe e © e ° e © e e e e ° e 2 Labor Management Relations Act, as amended, §302(c)(5)(B). 29 USC §186(c)(5)(B). .. .... 17 vi OPINIONS BELOW The opinion of the United States Sixth Circuit Court of Appeals is re- ported at 749 F.2d 315 and is found in Appendix "A" at p. | - The judgment of the United States District Court for the Northern District of Ohio was unpublished and is also in Appendix "A" at | JURISDICTION The judgment of the United States Sixth Circuit Court of Appeals was entered on November 26, 1984. No peti- tion for rehearing was filed. vii STATEMENT OF THE CASE On February 29, 1981, Kohn Beverage Company (Petitioner) and Teamsters Local 348 executed a collective bargaining agreement (Agreement). The Agreement required Peti- tioner to make contributions for each employee to the Teamsters Local 348 Health and Welfare Fund (Respondent) and Central States Southeast and Southwest Areas Pension Fund (Respondent). On September 1, 1981, 29 of Petitioner's em- ployees staged a work stoppage, and on September 3, 27 employees were terminated and subsequently replaced by non-union employees. When the non-union employees attempted tc join the unicn pursuant to the union shop clause in the Agreement, they were denied membership by Local 348 Secretary-Treasurer, Dan Darrow. Darrow, who was trustee and administrator of Respondent told the employees that they would not be eligible for benefits from the Health and Welfare or Pension Funds. Petitioner subsequently provided alternate health and pension benefits to the non-union employees. On October 26, 1982, Respondent filed a complaint pursuant to the Labor Management Relations Act (LMRA). 29 USC §185(a) and the Employee Retirement and Income Security Act. 29 USC §§1132(a), 1145. Respondent alleged violation of the Agreement and failure by Petitioner to contribute to the employee benefit plans. Respondent sought to enjoin violations of the Agreement and benefit plans and to recover unpaid contributions, interest, costs and attorney fees. After trial on March 10, 1983, the District Court filed findings of fact and conclusions of law granting judgment for Petitioner. The District Court held that Petitioner was not required to contribute =2- to the funds for non-union employees and, alternatively, Respondents were estopped by Darrow's statements to the new employees from recovering the delinquent contributions. Respondent appealed to the Sixth Circuit Court of Appeals, which on November 26, 1984 issued an opinion reversing the District Court. The Sixth Circuit held that the Agree- ment applied to all employees of the bargain- ing unit, irregardless of union membership. The Court of Appeals ruled that the District Court erred in holding that the union shop clause alone limited Petitioner's obligation to make contributions on behalf of union members. In addition, the Sixth Circuit ruled that the District Court's factual findings relating to Petitioner's estoppel defense were clearly erroneous. The Appeals Court held that it is clear that Petitioner had not established the elements of estoppel. It is the Decision of the Court of Appeals rendered on November 26, 1984 that Petitioner presently seeks review through a Writ of Certiorari to the United States Supreme Court. Respondent maintains that the Writ must be denied because the Sixth Circuit's Decision does not present novel questions or involve issues that are in conflict among the Circuit Courts. i = a o cr hc The « as a ee _— ,7 = — : re i ‘rk - Na) ae! oe PI eae ee pr i _* mat! Ca ag i “a = ae ne Lae te = . es — REASONS FOR DENYING PETITIONER'S WRIT OF CERTIORARI I. THERE ARE NO NOVEL QUESTIONS CONCERNING COLLECTIVE BARGAINING AGREEMENTS AND LABOR RELATIONS. Respondent's original action in District Court was based on the express provisions of | an ordinary collective bargaining agreement. See Appendix “B" at p.l-3. The Agreement in- cluded a standard recognition clause (Art. I) and a typical union security provision (Art. VI). Article XIV required Petitioner to contribute to the Health and Welfare Fund “for each employee covered by this Agreement.” Similarly, Article XVII required employer contributions to the Pension Fund “for each regular employee covered by this Agreement.” Article II defined the Agreement's use of the term “Employee” to include the various job classifications within the unit. 7 ‘ = 9p, alll Naceal _ a a The Sixth Circuit decided that, absent contrary language, collective bargaining agreements cover all employees of the bar- gaining unit. Under the Court's interpreta- tion of the Agreement, Petiticner was required to make contributions to the Funds on behalf of all unit employees, not just union members. The Sixth Circuit's position embodies funda- mental principles of labor relations and is well supported by case law, including Central States v. Central Transport, 698 F.2d 802 (6th Cir. 1983), cert. granted, U.S. , 104 s.Ct. 3531 (1984). A. COLLECTIVE BARGAINING PRINCIPLES REQUIRE THAT AGREEMENTS COVER ALL EMPLOYEES OF THE UNIT. The LMRA grants unions the right to be selected as the exclusive representative of all employees in an appropriate unit for the purpose ci collective baregsiaing. 29 USC §159(a). The exclusive representative has a duty to negotiate with the employer to reach an agreement that will benefit all unit em- ployees. 29 USC §158(b(3). The union then has =6- on aon ce os yu oye | Boe - ee ee ss. . ae ee we —" 7 i be mnt sebaaas was also an action brought by a widow to compel payments from a pension fund. The Trust was funded by employer contributions but not on the basis of a collective bargain- ing agreement or any other written agreement. LMRA §302(c)(5)(B) prohibits payments from a union-employer trust fund unless there is a written agreement between the parties speci- fying the basis upon which the payments are made. 29 USC §186(c)(5)(B). The Funds invoked §302 as a defense but the widow argued that they should be estopped from denying benefits on that ground. In Moglia the Second Circuit refused to apply estoppel principles because estoppel could not provide the written agree- ment, the essential element. Moglia does not hold that estoppel cannot be applied against health and welfare and pension plans. Thurber v. Western Conference of Teamsters Pension Plan, 542 F.2d 1106 (9th Cir. 1976) was a suit brought by an employee seeking benefits under an Employer-Employee -i7- ci ay, a i ee pension plan. In Thurber the plaintiff em- ployee had permitted his union membership to lapse, thereby creating a break in service. The Circuit Court found that under the agree- ment, the employer was not required to make contributions for the purpose of “curing” breaks in service. The Ninth Circuit ruled that the pension fund could not legally re- quire a retroactive contribution from the employer. Moreover, it would also be illegal for the fund to pay benefits to the plaintiff on the basis of illegal retroactive contri- butions. The Thurber Court did not hold that estoppel could not be applied against the pension fund. It held that the doctrine of estoppel cannot be invoked to compel an illegal act. There is simply no authority supporting Petitioner's claim that the Courts of Appeal are split over whether estoppel principles can be applied against health and welfare and pension funds. All of Petitioner's citations involve suits seeking benefit pay- ments from pension plans. None of the cases -18- ee C7 et ™~ >) “a a om > > . . = i | ; os r ly ae - i a ee involve delinquent contributions due under the express terms of a collective bargaining agreement. None of the cases involve health and welfare plans. Estoppel principles are applied against health and welfare and pen- sion plans, if the requisite elements are ful- filled. B. PETITIONER'S ESTOPPEL DEFENSE FAILED BECAUSE IT DID NOT ESTABLISH THE NECESSARY ELEMENTS. The proper function of estoppel is to prevent fraud and to promote the ends of justice. Dickerson v. Colgrove, 100 U.S. $78 (1879). The party claiming an estoppel must show the conduct giving rise to the estoppel and its good faith reliance thereon. The claiming party must prove an ignorance of the real facts and that its injury was caused by the conduct of the other party. Crosset Lumber Co. v. United States, 87 F.2d 930 (8th Cir. 1937). The application of estoppe! must depend upon the circumstances of each -19- § : 3 + 5 a 3 : pane ae particular case. Scott County v. Advance- Rumley Thresher Co., 288 F. 739 (8th Cir. 1923). Applying the essential elements of estoppel to this case, the Sixth Circuit properly rejected Petitioner's estoppel defense. The Court of Appeals held that the estoppel defense failed because Petitioner had actual knowledge of the Agreement. Peti- tioner knew of its obligation to make contri- butions to the funds. This position is supported by Employer - Teamsters Joint Council No. 184 Health and Welfare Fund v. Weatherall Concrete, Inc., 468 F. Supp. 1167 (S.D.W.V. 1979). In Weatherall the Court refused to apply estoppel principles because it could not be said that the claiming party was without knowledge of the true facts. Weatherall was an action seeking to recover deficient contributions to union trust funds. The Plaintiffs charged that contributions were being made, but not in =-20- ee AM RE eR PLETE " bicahinit't 4 teat an Oe ee Re OE ar tat AA Dee roids 8 3 y ¢ x the amounts required by the collective bar- gaining agreement. The employer defended by invoking the doctrine of estoppel. The Dis- trict Court rejected this defense because the employer had reason to know the exact amount due in contributions. The Weatherall Court found that the employer had signed and received a copy of the collective bargaining agreement. The agreement set forth the rates at which the employer was to contribute to the fund. On this basis, the Court held that the employer had constructive, if not actual, knowledge that contributions were not being made in accordance with the agreement. With this knowledge the employer could not avail it- self of the estoppel doctrine. The Sixth Circuit also ruled .that Petitioner could not maintain an estoppel defense because its "reliance" on Darrow's representations was not reasonable. The Circuit Court ruled that Petitioner had =-2i1», _-_. ee Th @ he ala as 7 ie ae oe Cw ~——- a al 4 ‘Central States first learned it had been named a plaintiff in the case on January 4, 1983. and, after petitioning the court, filed an amended complaint on March 4. 1983, alleging essentially the same ) allegations as the original complaint. Qe — 1 5 f 1 oy i i nt ' ; > a = : a a ae i 7 ’ Chena to v1 - en -_ 1 . _ ' & a ia , 2 a a ; : —_ - : = : —— a) : . - ni won, 4 i A x =4 _— a , _ _ : > rr ie a : > of ify : Ags . —— De Ys 7 - = 7 a 7 | 7 —. Se Ca » : ar is): i _ . coe Ade ee = _ = - Pied i - aw was » es # ne - ve 7 C rn io . - i | Fe err : _ >= D ' - - o . - s\ hot =“ fT i eh » Ah eS phe, a : me a wa — Py i a 1 - - - a ee ee is ee bes kh tee. 4 ee " . | a : = a el / + /-_ =, ,, 18 Pe gare oft o t= ‘a lol ee ; 9 wt ; i. juan oui i ares awe " —e 7 - pant ai has ~~ ee ; ma), in — , ) Nus. $3-3663 etc. Health & Welfare Fund v. Kohn, etc. 3 statements to the new employees from recovering the delin- quent contributions. Additionally, the district court held that Kohn was entitled to a credit for payments made to the ‘ Health and Welfare Fund in late August 1981 for the em- ployees terminated September 3. Plaintiffs appeal.? Il. Plaintiffs contend that the district court erred in construing the collective bargaining agreement and benefit plans to require Kohn to contribute to the plans for union members only. The construction of collective bargaining agreements and employee benefit plans is a question of law fully review- able by this court. Central States, Southeast and Southwest Arcas Pension Fund v. Central Transport, Inc., 698 F.2d 802, 805 (6th Cir. 1983), cert. granted, —— U.S. —, 104 S. Ct. 2The respective trust agreements define, by reference, Kohn’s obligation ta contribute to the trusts in terms of Kohn’s obligations ’ under the collective bargaining agreemeit. Therefore, the inquiry > relative to both the LMRA claims and ERISA claims is identical, and jurisdiction is appropriately premised on 29 U.S.C. § 185(a). Sce Laborers Health and Welfare Trust Fund v. Kaufman & Broad of Northern California, 707 F.2d 412, 416 n4 (9.4 Cir. 1983). The district court apparently made no determination as io whether plaintiffs prop- erly brought this action “on behalf of their members,” nor whether plaintiffs were “participants.” “beneficiaries,” or “fiduciaries” within + the purview of 29 U.S.C. §§ 1002(7), (8), (21), 1132(a), (e). Whether plaintiffs properly state claims cognizable undcr ERISA was not raised by the parties and has no effect on our determination of issues raised in this appeal; therefore, we express no opinion as to whether plaintiffs properly state a claim pursuant to 29 U.S.C. $1132(a). See Pressroom Unions-Printers League Income Security Fund v. Con- tinental Assurance Co., 700 F.2d 889 (2d Cir.), cert. denied, —— U.S. —, 104 S. Ct. 148 (1983); Local 807 Labor-Management Pension Fund v. Qwens Trucking, Inc., 585 F. Supp. 616 (E.D. N.Y. 1984); ) Sirty-Five Security Plan v. Blue Cross and Blue Shield of Greater New York. 583 F. Supp. 380, 383 (S.D. N.Y. 1984); Margaret Hall Foundation, Inc. v. Atlantic Financial Management, Inc., 572 F. Supp. > 1475, 1485 (D. Mass. 1983); Employees Savings Plan of Mobil Oil Corporation v. Vickery, 99 F.R.D. 138. 140-41 ($.D. N.Y. 1983); Rosen- thal v. Ann Service Corp., 571 F. Supp. 1229, 1230 n.1 (S.D. N.Y. 1983); Amalgamated Tidustrial Union Local 44-4 Health and Welfare Fund "Vv. Webb, 562 F. Supp. 185 (N.D. Ill. 1983). However, sce Fentron JIndustries, Inc. v. National Siiopmen Pension Fund, 674 F.2d 1300, 1395 (9th Cir. 1982). = 3a 4. Health & Welfare Fund \. Kolin, ete. Nos. $3-3663 ete. 3531 (1984); Muckey v. National Football Leaguc, 543 F.2d 606, 612 (Sth Cir. 1976), cert. dismissed, 434 U.S. 801 (1977). The collective bargaining agreement requiredt Kohn to con- _ tribute to the Health and Welfare Fund “for each employee _ covered by this Agreement,” Article XIV, and to the Pension | Fund “for each regular employee covered by this Agreement,” ’ Article XVII. Article II of the agreement provided that “[t]he term ‘Employees’, as used in this Agreement shall in- _ elude Driver-Salesmen, Special Drivers, Swing Drivers, Over- _ the-Road Drivers, Helpers and Warehousemen, Garage Me- chanics and Garage Maintenance employees.” The agree- ment included a recognition clause and a union shop clause.* Several factors guide a determination of the scope of coverage of a collective bargaining agreement. This court has construed a definition of emplovees by job classification to require coverage by the collective bargaining agreement of all employees within those classifications, regardless of union membership. Central States v. Central Transport, 698 F.2d at 804-05. The presence in the agreement of a recogni- tion clause designating the union as the exclusive bargaining ey ee aE YO le Re nt alee ag rca te. 3 Article I provided: The employer recognizes the Union as the sole and exclusive bargaining agent on behalf of all employees of the Employers, as hereinafter defined in Article II, with respect to wages, hours, and all other terms or conditions of employment. Article VI provided: : It shall be a condition of employment that all employees of the Employers covered by this Agreement, who are members of the Union in good standing on the effective date of this Agree- ment, shall remain members in good standing by the pay- ment of membership dues and those who are not members on the effective date of this Agreement shall, on the thirty-first (31) day following the effec :ve date of this Agreement, become and remain members in good standing in the Union by payment of membership dues. It shall also be a condition of employ- ment that all employees covered by this Agreement and hired on or after its effective date shall on the thirty-first (31) day following the beginning of such employment, become and re- main members in good standing in the Union by payment of membership dues. -4- 5 5 2 q ‘ L. —N pe ee PN re — ee iat dh ee ee atin, Ot se AY nes Was ON Gt gcc i shat ie Sat Se ber Vd OO: D+ set Dg lane ite gee hate tie e ; Nos. 83-3663 ete. Health & Welfare Fund vy. Kohn, etc. 5 agent for all employees indicates that fringe benefit contri- butions are required for both univn and non-union members. Audit Services, Inc. v. Rolfson, 641 F.2d 737, 761 (9th Cir. 1981); Manning v. Wiscombe, 498 F.2d 1311, 1313 (10th Cir. 1974). The absence of language distinguishing union and non-union employees indicates that the agreement covers all employees. Carpenters and Millwrights Health Benefit Trust Fund v. Gardineer Dry Walling Co., 573 F.2d 1172, 1177 (10th Cir. 1978). See Cincinnati Bengals, Inc. v. Thompson, 553 F. Supp. 1011, 1014 (S.D. Ohio 1983). The district court based its interpretation of the agreement on the presence of the union shop clause. However, union shop clauses have been construed to require only payment of union dues and not union membership. NLRB v. Hershey Foods Corp., 513 F.2d 1083, 1085-86 (9th Cir. 1975); Markt v. Ro-Mart, Inc., 471 F. Supp. 1292, 1296 (N.D. Cal. 1979). See NLRB v. Gold Standard Enterprises, Inc., 679 F.2d 673, 677 (7th Cir. 1982). See also Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665 (1982). Further. to con- true the term “employees” to mean union members would render the language of the union shop clause surplusage. The union shop clause required “that all emplovees covered by this agreement . . . become and remain members in good standing in the Union. . . .” This language suggests that “employees covered by this agreement” may exist prior to and apart from union-member employees. The district court interpreted the term “employees” to mean “union-member employees.” This construction effectively interprets the union shop clause to require union members to become union mem- bers, and renders the clause meaningless. “A contract will not be construed so as to reject any words as surplusage if they reasonably can be given meaning.” Union Investment Company v. Fidelity & Deposit Company of Maryland, 549 F.2d 1107, 1110 (6th Cir. 1977). The district court erred in interpreting the agreement as applying only to union members. The agreement recognized =5 | : WU Health & Welfare Fund v Kohn, etc. Nos. 83-3668 ete. Paragraph (1) of 29 U.S.C. § 1103(c) provides that: Kxcept as provided in paragraph (2), (3), or (4) or subsection (d) oi this section, or under sections 1342 and 1344 of this title (relating to termination of insured plans ), the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive pur- poses of providing benciits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan. Paragraph (2)(A)(ii) provides an exception to the general prohibition expressed in paragraph (1). In the case of a contribution . . . made by an employer to a multiemployer plan by a mistake of fact or law (other than a mistake relating to whether the plan is described in section 401(a) of Title 26 or the trust which is part of such plan is exempt from taxation under section 501(a) of Title 26), paragraph (1) shall not prohibit the return of such contribution or payment to the employer within 6 months after the plan administrator determines that the contribution was made by such a mistake. The statute places the dctermination as to whether a mistaken contribution was made in the hands of the benefit plan administrator. Peckham vy. Board of Trustees of Inter- national Brotherhood of Painters and Allied Trades Union and Industry National Pension Fund, 719 F.2d 1063, 1066, modi- éEmployers who pay mistaken contributions have no right of action or entitiement to a refund. Kann v. Keystone Resources, Inc., 575 F. Supp. 1084, 1091 (W.D. Penn. 1983): R. V. Cloud Co., Inc. v. *Western Conference of Teamsters Pension Trust Fund, 566 F. Supp. 1426, 1431 (N.D. Cal. 1983); Hardy v. National Kinney of California, Inc., 565 F. Supp. 1027, 1050 n.1 (N.D. Cal. 1983); Crown Cork and Seal Company, Inc. v. Teamsters Pension Furd of Philadelphia and Vicinity, 549 F. Supp. 307, 311-12 (E.D. Penn. 1982), aff’d, 720 F.2d 661 (3d Cir. 1983); Martir v. Kelclorn, Inc., 546 F. Supp. 889, 894 (N.D. Ill. 1982). Contra Ethridge y. Masonry Contractors, Inc., 536 F. Supp. 365, 368 (N.D. Ga. 1982); E. M. Trucks, Inc. v. Central States, 517 F. Supp. 1122, 1124 (D. Minn. 1981). : -19- Nos. $3-3663 etc. IJealth & Welfare Fund v. Kohn, etc. 11 fied, 724 F.2d 100 (10th Cir. 1983); Hardy v. National Kinney of California, Inc., 571 F. Supp. 1214, 1215 (N.D. Cal. 1983). “The trustees’ action is conclusive unless arbitrary or capri- + . cious, not supported by substantial evidence, or erroneous on a question of law.” Peckham, 719 F.2d at 1066. See also Van Gunten, 672 F.2d at 587. The district court does not appear to have followed this standard, but instead reviewed the admini- strator’s decision de novo. However, under our deferential standard of review, the trustee’s decision cannot be deemed arbitrary or without support. The collective bargaining agreement provides only that con- tributions be made “for each employee covered by this Agree- ment.” The Health and Welfare Fund Plan provides that “[t]he insurance of a covered person shall automatically ter- minate . . . [a]s of the last day of the insurance month in which the covered person ceases to be engaged in full-time active employment. . . .” The Health and Welfare Fund as- serts that as long as the employees were on the payroll through September 3, they were covered by the plan, and, therefore, Kohn was obligated to contribute to the Fund for those em- ployees. In the absence of a clear rule to the contrary, the trustee’s decision that no mistaken contributions were made is not arbitrary or contrary to law. Therefore, Kohn was required to contribute for the employees terminated September 3 as well as those hired to replace them. Finally, plaintiffs claim that the district court erred in re- fusing to enter judgment against Kohn for contributions owed as a result of the reinstatement in arbitration of three termin- ated employees. The district court declined to enter judgment until the appeals process was complete. The effect of the arbi- tration proceedings may be addressed by the district court in calculation of plaintiffs’ damages. Therefore, the judgment of the district court is REVERSED and Remanpep for further proceedings consistent with this opinion. -lji- let ee a a a —_ yy = Oe a oe 0 ce ea - DOWD, J. Filed: 2/25/83 UNT'TED STATES DISTRICT COURT NORTHERN DISTRICT Or OdIO EASTERN DIVISION Teamsters Local 348 Health and Welfare Fund, CASE NO. C82-2938A et al. Plaintiffs : FINDINGS OF FACT vs. AND CONCLUSIONS : OF LAW The Kohn Beverage Company : Defendant : This case was tried to the Court on March 10, 1983. Based upon the trial testimony and the exhibits introduced into evidence, the Court finds the following facts: l. Jurisdiction of this Court is founded upon §30l(a) of the Labor Management Relations Act of 1947, as amened 29 U.S.C. §185(a}, §502 of the Emoloyee Retirenent Incone Security Act =} 2« of 1974 (29 U.S.C. $1132, hersainafter referreai to as ERISA) and $306 of the Multi Enployer Pension Plan Amendments Act of 1980 (§515 ERISA) and 28 U.S.C. §1332. 2. The plaintiff, Teamsters Local 348 Health and Welfare Fund is a multi employer employee benefit plan within the meaning of §3(1), (2), (3), and (37), §502 and $515 of ERISA as amended by the Multi Employer Pension Plan Amendments Act of 1980 (29 U.S.C. §1002 (lL), (2), (3) and (37), §1132 and §306, PL 96-364) and brings this action on behalf of the trustees, participants, and beneficiaries of said plan. 3. Plaintiff Central States Southeast and Southwest Areas Pension Fund is a Multi Employer Benefit Plan within the meaning of §3(1),(2),(3) ana (37), 5392 ani $315 of FRISA as arrnds4 =} 3- ‘nv tia os ¢ oy the Central States, Sontheast anl Southwest Areas Pension Funi the sun of Forty-six Dollars (3545.00) per weex for each regular employee covered by this Agreement. Fftfective June 1, 1981, the Employer shall increase said contribution to Fifty-one Dollars ($51.00) per week For each regular employee covered by this Agree- ment. Effective June l, 1982, the Employer shall continue to pay the sum of Fifty-one Dollars ($51.00) per week as contribution to said fund for each regular employee covered by this Agreement plus any increase in contributions as same are negotiated in the National Master Freight Agreement." "ARTICLE XIV: HEALTH AND WELFARE The Employers agree to contribute to the Teamsters Local No. 348 Health and Welfare Fund the following amounts for each employee covered by this Agreement: Effective January 1, 1981, and January 1, 1982, and January 1, 1983, a sum not to exceed a maximum of ten percent (103%) increase in monthly contributions; it being understood that effective January 1, 1980, the sum of One Hunired Eighty-Five Dollars ($135.09) nar month is the eanttibutioa fisurr whish i: =) 7 ~ - : - haceaia, LL mara aa age: seat . ‘ — r > -_> ; : : FQ Wain + a), ore s Tat. 929 -20- herein, is a party wit aa Fanloyec, as define’ here2ira.” Article I, Section 1 of the Trust Agreement defines “emplover"” as follows: "Employer - The term ‘Employer’ as used herein shall mean any employer who is bound by a collective bargaining agreement with the Union, or any employer not presently a party to such collective bargaining agreement who satisfies the requirements for participation as established by the Trustees and agrees to be bound by this Agreement." Article I, Section 3(a) defines "employee" as follows: "(a) A person who is employed under the terms and conditions of a collective bargaining agree- ment entered into between an Employer as herein defined and a Union as herein defined, and on whose behalf payments are required by such collective bargaining agreement or apolicable law to be made to the Fund by the Enployer 14. Section 3.92(a) of the Plan defines “covered employnent"” as follows: “(a) Any enployment of an Envloves for which contributions to the Pansion 7 911 are Baits or area -2i- requiced to be made on his be2nalf shall be considered Covered Employment if such contributions are in accordance witn tne rules and regulations of this Plan and Trust Agreement." 15. Article I, Section l, of the Amended and Restated Agreement and Declaration of Trust of the Teamsters Local No. 348 Health and Welfare Fund defines "Employer" as follows: "SECTION 1 - EMPLOYER The term "Employer" as used herein shall mean: (a) Any individual, firm, association, partnership, or corporation who has duly executed and/or is bound by the Collective Bargaining Agreement with the Union and in accordance therewith agrees to participate in ani contribute to the Trust Fund herein created and provided for. Any Employer who contributes to the Trust Fund created hereunder shall, by the act of contribduting, become a party to this Agreement whether or not any such contributing Employer has signed this Agreement or a counterpart thereof, (+) Tae 7AiL39" tS tea @s* x > solaly to the extant, that its acts in the canacity of ana Enployer of its Employess on whose behalf it makes contributions to the Trust Fund in accordance with the Collective Bargaining Agreement. (c) The Trustees to the extent that they act in the capacity of an Employer of their Employees on whose behalf they make contributions to the Trust Fund in accordance with the Collective Bargaining Agreement. (ad) The Employers as defined herein shall, by the making of payments to the Trust Fund pursuant to the Collective Bargaining Agreement, be conclusively deemed to have accepted and be bound by this Agreement and Declaration of Trust." 16. Article I, Section 2, defines "Employees" as follows: "SECTION 2 - EMPLOYEES The term "Employees" as used herein shall mean ani incluie members of a Collective Bargaining Unit represented by the Union who are eligible to particinate in and receive the ' penefits of the Health anj Welface Plan and Trust in ancoridance with this Agcreeneank, Tn agaition, “ia ter. TEanl sass shall mean ant iaclade Full-time, regular enoloyees of Euoloyers who are not menabers of said Collective Baragaing Unit of the Union, of the Union and of the Trustees. Self-enployed individuals, pursuant to Section 401(c)(1) of the Internal Revenue Code, shall be considered employees. However, not to exceed 10% of the participants." 17. Article I, Section 3, defines "Union" as follows: "SECTION 3 - UNION The term "Union" as used herein shall mean Teamsters Local No. 348 and its successor." 18. Article I, Section 8, defines "Emoloyer Contributions" as follows: "SECTION 8 - EMPLOYER CONTRIBUTIONS The term "Employer Contributions" as used herein shall mean payments made to the Trust Fund by an Employer." 19. Article I, Section 15, defines "Beneficiary" as follows: "SECTION 16 - BENEFICIARY a ‘. ~~, . ™ & > ° . oe 8 6s" i sie x 1nm2 cer: wus ae ar mts é . % * »37308 7:34 743.2 So ca “soierr —-24- or by the terms of the Health and Welfare Plan created pursuant to this Agreement, who is or may become entitled to receive a benefit." 20. Article II, Section 2, provides in part: "SECTION 2 -—- EMPLOYER CONTRIBUTIONS TO FUND Each Employer shall contribute and pay into the Fund the amount specified in accordance with the applicable Collective Bargaining Agreement entered into with the Union. . .Upon payment of contributions to the Trustees, all responsibilities of the Employer for each contribution shall cease, and the Employer shall have no responsibilities for the acts of the Trustees, nor shall an Employer be obligated to see to the application of any funds or property of the Trust or to see that the terms of the Trust have been complied with." 21. On September 1, 1981, approximately 29 employees of Kohn Beverage engaged in an unauthorized work stoppage. Subsequently, Kohn Beverage, after advising the subject employees -25- that if they did not return to work they would be fired, on September 2 and 3 proceeded with the termination of the aformentioned employees. 22. As a result of the strike, all but two of those employees were terminated on September 3, 1981. 23. Between September 3, 1981, and October 1, 1981, the defendant, Kohn Beverage Company hired a number of employees to replace the terminated employees. These new employees were hired as drivers, salesmen, warehousemen, and helpers, and in terms of wages, conditions, and hours of employment, were treated identically to their predecessors. . 24. The defendant Kohn Beverage Company, has not not made any contributions to the Teamsters Local 348 Health and Welfare fund or the Central -26< States Southeast and Southwest Areas Pension Fund on behalf of any of the non-union replacements hired after September 1, 1981, to replace the discharged employees as described above. 25. The Defendant Kohn Beverage Company has continued to make payments to the Central States Pension Fund and the Teamsters Local Health and Welfare Program for the two employees who did not participate in the illegal work stoppage and were not terminated. 26. At the end of September, pursuant to the collective bargaining agreement, the new employees of Kohn attempted to join the local union. However, the employees were informed by Dan Darrow, Secretary Treasurer of Local 348, that the new employees would not be allowed to join the Local Union. -27- 27. On October 15, 19£1, several of the new employees of Kohn Beverage personally went to the Local 348 headquarters and met with Dan Darrow. At the meeting, the new employees were told by Dan Darrow that they would not be permitted to join the Union, that they would not be permitted to participate in the local Union's health and welfare program, nor in any of the benefits provided by Teamsters Local 348, including the Pension Program provided by the Central States Pension Fund. 28. In addition to being the Secretary Treasurer of the Teamsters Local 348, Dan Darrow is also a trustee and administrator of the Local 348 Health and Welfare Fund. Darrow has held the position of trustee with the Local Health and Welfare fund for a -28- period of twenty years. Additionally, Darrow held the position of administrator of the Local 348 health and welfare fund for approximately fifteen years. 29. As administrator of the fund, Darrow had the duty to supervise the running of the fund, the negotiating of the contribution rates within the contracts, collecting the funds, and . supervising the payment of claims. 30. Dan Darrow is not an employee of Central States Southeast and Southwest Pension Funds. However, Mr. Darrow negotiated the Pension Plan into the collective bargaining agreement with Kohn Beverage, collected funds for the pensior plan and assisted employees in their application for membership in the plan and provided information about the plan to local members. Additionally, =%Gu Dan Darrow, initiated suit on behalf of the Central States Southeast and Southwest Areas Pension Fund in the present action and is the only individual who ever dealt with Kohn Beverage on behalf of Central States. 31. After Mr. Darrow informed the employees on October 15, 1981, that they would not be permitted to participate in the Local Health and Welfare program nor the pension program provided by Central States, the employees returned to Kohn Beverage Company, and subsequently, Kohn Beverage provided for its new employees, a hospitalization and medical coverage plan with the Aetna Insurance Company, and also amended the Kohn Beverage Company Money Purchase Pension Plan and Trust to permit the participation in said Pension Plan by all employees of the Kohn Beverage Company. -30< 32. The non-union replacement employees hired during the period September 3, 1981, to October 1, 1981 were not covered employees under the collective bargaining agreement, the participation agreement, the Central States Revised and Amended Trust Agreement, the Central States Plan, or the health and welfare declaration of trust. 33. Dan Darrow acted with apparent authority on behalf of both the Local 348 Health and Welfare Fund and Central States Southeast and Southwest Pension Fund. 34. The defendant, Kohn Beverge Conia. took a credit for the payments it made to the Local Health and Welfare Fund for the month of September, for the employees it terminated on Septmber 3, 1981. aS}« 35. Three of the discharged employees were reinstated to their employment by an arbitrator's decision. The defendant, Kohn Beverage Company, filed suit to vacate those awards. At this time a court has confirmed the awards of the arbitrators, however, an appeal has been taken from the court's decision. 36. The plaintiffs have failed to exhaust administrative remedies as provided by the collective bargaining agreement. CONCLUSIONS OF LAW 1. The collective bargaining agreement between the parties does not require the payment of funds to the Local Health and Welfare Fund or the. Central States Pension Fund for employees who are not union members. -32- 2. The plaintiffs, Teamsters Local 348 Health and Welfare Fund and the Central States Southeast Southwest Pension Fund are estopped from asserting an action to recover for the non payment of funds by the employer, Kohn Beverage. 3. The plaintiffs, Teamsters Local 348 Health and Welfare Fund and Central States Southeast and Southwest Areas Pension Fund are not entitled to recover payments allegedly due by the defendant Kohn Beverage Company for non-union employees hired subsequent to September 3, 1981. 4. The plaintiff Trustees of the Central States Southeast and Southwest Areas Pension Fuad and the Local 348 Health and Welfare Fund are not required to exhaust administrative remedies set forth in the collective bargaining agreement. See Robbins v. Prosser's =33< Moving & Storage Co., 700 F. 2d 433 (8th Cir. 1983). 5. The defendant, Kohn Beverage Company, was entitled to take credit for the September payments made to the Local Health and Welfare Fund, on behalf of the employees who were terminated on September 3, 1981. No where in the agreement is it found that the employer is required to make contributions on behalf of employees who fail to work any day of the month. Although the employees had not yet been terminated, they were terminated on September 3, and failed to work any day in September. 6. As for the terminated employees whose arbitration proceedings are pending on appeal, the Court refrains from making any ruling as the state court proceedings have not yet been terminated and the Court does not -34- find it proper to enter a decision in regard to the pending state court actions. MEMORANDUM OF OPINION The plaintiff argues that the defendant, Kohn Beverage, is required to make payments to both the Local 348 Health and Welfare Fund and to the Central States Southeast and Southwest Areas Pension Fund for the non-union replacement employees hired subsequent to September 3, 1981. The plaintiffs argue that the definition of employee contained in the collective bargaining agreement, applicable to the parties, requires that payments be made on behalf of employees who are both union and non-union members, as job function rather than union membership is the test to determine whether or not an employee -35- is covered under the Pension and Health and Welfare Plans. The defendant, Kohn Beverage, argues that the collective bargaining agreement applicable to the parties only requires that payments be made on behalf of employees who are also union members, and in that the replacement employees hired subsequent to September 3, 1981, were denied union membership payments are not required to the Local Health and Welfare Fund or the Central States Pension Fund'on behalf of the non-union employees. Article II of the collective bargaining agreement defines "employees" as driver salesmen, special drivers, swing drivers, over the road drivers, helpers, and warehousemen, garage mechanics and garage maintenance employees." There is no question that =36= the replacement employees hired subsequent to September 3, 1981 worked as driver salesmen, helpers and warehousemen as described in Article II of the collective bargaining agreement. The defendant, however, argues that Article VI of the Collective Bargaining Agreement, setting forth the union shop clause, requiring as a condition of employment that all employees of the employer covered by the agreement become members of the union within 30 days of being hired, further defines the term "employees" as requiring union membership. The plaintiffs cite a number of cases in support of the proposition that an employer is required to make payments to health and welfare funds and pension funds for employees who are non-union members. See Audit Services, Inc. v. a3 Fe Rolfson, 641 F. 2d 757 (9th Cir. 1981); Markt v. Ro-Mart, Inc., 471 F. Suop. 1292 (N.D. Cal. 1979); Manning v. Wiscombe, 498 F. 2d 1311 (10th Cir. 1974); Central States Southeast & Southwest Areas Pension Fund vs. Central Transport, Inc., 698 F. 2d 802 (6th Cir. 1983). The Court notes that the above cases, cited by the plaintiff, were decided on the basis of the language contained in the collective bargaining agreements and trust agreements applicable to the parties. Accordingly, each case and the applicable agreements must be reviewed individually to determine the proper definition of "employee" as contemplated by the parties. Thus the Court must review the collective bargaining agreement and other relevant documents to determine -38- whether contributions are required to be made to the Local Health and Welfare Fund and the Central States Pension Plan on behalf of the non-union employees by Kohn Beverage. Upon review of the cases cited by the plaintiff, the Court finds that the present case is distinguishable from the cases cited by the Plaintiff. In Audit Services, Inc., the trust agreement of the pension fund specifically stated that contributions were required whether an employee is "union, non-union, permanent or temporary." Thus, the trust agreement specifically included non-union members. In Markt v. Ro-Mart, the collective bargaining agreement required that payments be made on behalf of each and every employee. Furthermore, the trust agreement defined the term "employees" as "members of said -39- union and/or, employees who are eligible under Union rules and regulations for insurance or employees who perform, or any employer who is a party to the collective bargaining agreement with the union work which is under the jurisdiction of the union." In Manning, the Court found that the collective bargaining agreement recognized the union as the bargaining representative of all employees employed by the employer in a situation in which the employer employed large numbers of union and non-union employees. In the present case, the collective bargaining agreement requires that all individuals become members of the union within 30 days after being hired. Additionally, the agreement does not require the employer to make contributions on behalf of employees to -40- the health and welfare and pension funds until after 30 days after hire. The contract requires as a condition of employment that all employees become members of the union. There is no clause either in the collective bargaining agreement or in the trust agreements which specifically identifies employees as including both union and non-union members. Article 1.06(a) of the Central States Pens‘on Plan indicates that contributions need not be made until at least 30 days have passed since the employee has been on the employer's payroll. Accordingly, the pension plan defines an employee as a person who has been on the payroll for at least 30 days. This is consistent with the fact that an employee may not become a member of the union until 30 days after he has been on -4)]- the payroll. In Markt, supra, at 1296, the Court noted that contributions were required to be made on behalf of employees at the time they were hired, indicating that both union and non-union employees were covered by the collective bargaining agreement While the Court is aware of the decision in Markt, holding that the Union Shop Clause contained in the Collective Bargaining Agreement in that case did not add to the definition of the term "employee", the Court, upon reviewing the present agreement, finds that the Union Shop Clause further defines the term "employee" as contemplated by the parties and only reguires that contributions be made to the Local Health and Welfare Fund and the Pension Plan on behalf of Union members. -42- Although the agreement defines "employees" in the terms of job description, the agreement further requires that all individuals become and remain union members. Obviously, this was also the view adopted by Dan Darrow, the individual who negotiated the clauses into the collective bargaining agreement, when he informed the new Kohn employees that they would not be entitled to any benefits pursuant to the collective bargaining agreement. Accordingly, the Court finds that the collective bargaining agreement requires that the employer only need contribute for employees who are also union members. The @atendent ad4itionally requests that this court find that the plaintiffs be estopped from asserting their claim to the unpaid contributions. ~~ Upon review of the record, the Court finds that the plaintiffs" actions require that they be estopped from asserting a claim to the unpaid contributions. At the time Dan Darrow tatoceed the new employees of the Kohn Beverage Company that they would not be entitled to participate in either the Local Health and Welfare Fund or the Central States Pension Fund, he was acting with apparent authority on behalf of both the Local Health and Welfare Fund and the Central States Pension Fund. Dan Darrow had been a trustee of the Local Health and Welfare Fund for a period of 20 years. Additionally, Darrow had been the administrator of the Local Health and Welfare Fund for approximately 15 years. Darrow had the duty to supervise the running of the -44- fund, the negotiating of the contribution rates with the contracts, collecting the funds, and supervising the payment of claims. See Rosen v. Hotel and Restaurant Emp., 637 F. 2d 592, 595 N.7 (3rd Cir. 1981). As for the Central States Pension Fund, although Darrow was not a trustee or employee of the Pension Plan, he was the only person with whom Kohn Beverage had dealt with respect to the Plan. Mr. Darrow negotiated the pension plan into the collective bargaining agreement, collected funds for the pension plan and assisted employees in their application for membership in the plan and vrovided information about the plan to local members. Mr. Darrow identified himself as a liason between the employees and Central States (Tp. at 104). Additionally, Mr. Darrow also attempted o45~. wu to initiate suit on behalf of the Central States Pension Plan in the present case, indicating his belief that he was acting as an agent of Central States. The Court finds that Central States enabled and authorized Darrow to act on behalf of Central States to the extent that Kohn Beverage could reasonably interpret that Darrow was acting on behalf of Central States. Thus, although Darrow was not a trustee or employee of Central States, the defendant Central States clothed Darrow with sufficient authority to bind Central States on the basis of apparent authority. ° Accordingly, the Court finds that Dan Darrow acted with apparent authority to bind both the Local Health and Welfare Fund and the Central States é46< Pension Fund, when he informed the new Kohn employees that they would not be eligible for venefits either under the Local Health and Welfare Fund or the Central States Pension Fund. Four elements must be present in order to assert the doctrine of estoppel. These include: (1) The party to be estopped must be apprised of the facts; (2) the party to be estopped must have intended to impart a reasonable belief that reliance was expected; (3) the victim of the misrepresentation must be ignorant of the true facts; and (4) the victim must have relied to his detriment. Thurber v. Western Conference of Teamsters Pension Plan, 542 F. 2d 1106, 1108 (9th Cir. 1976). While the Court notes that a number of courts are hesitant to apply estoppel principles to cases involving benefit eligibility in certain circumstances, the Court finds that the o47J=- use of estoppel in the present case is justified. See Scheuer v. Central States Pension Fund, 358 F. Suop. 1332 (E.D. Wis. 1973). In Rosen, supra, at 598, the court held: The sui generis nature of the pension agreement. . . should not immunize it from the equitable principles that govern similar agreements. The rising ethical standards in business relations which the estoppel doctrine is designed to enforce are no less needed in the administration of pension CuRGS. « « As Darrow was acting with apparent authority on behalf of both the Local Health and Welfare Fund and the Central States Rension Plan, knowledge of the particular facts in regards to the present action can be imparted to both. Dan Darrow denied the new Kohn employees request to join the union and also informed them that they would not -48- b. eligible for benefits pursuant to the Local Health and Welfare Fund or the Central States Pension Plan. Dan Darrow intended that his conduct be acted upon or at least coulée reasonably forsee action would be taken in reliance upon his refusal to allow the new Kohn employees to join the union or to join the Local Health and Welfare Fund or the Pension Plan. Upon the new Kohn Beverage employees return to the defendant Kohn Beverage Company, the defendant, faced with a rather unique and difficult situation, in reliance upon Dan Darrow's conduct, formed a new Health and Welfare Plan for the new Kohn employees and also a new Pension Plan. Kohn Beverage in reliance upon Darrow's assertions that the new employers would not be covered, and without knowledge otherwise, relied upon Darrow's -49- statements by creating and contributing to a new health welfare pension plans. In light of the Court's earlier determination that the contract does not require the payment of funds on behalf of non-union employees to the Local Health and Welfare Fund or the Central States Pension Plan, the employer, — Dan Darrow's refusal to admit the new Kohn employees to either the Union, the Local Health and Welfare Fund or the Central States Pension Plan could not be held to know that the defendants were eligible to participate in such plans. Accordingly, in light of the foregoing, the Court finds that the plaintiffs are estopped from asserting a claim to recover unpaid contributions. The plaintiffs assert that the defendant, Kohn Beverage Company, was not entitled to a credit for the -50- September payments made to the funds on behalf of the employees who were subsequently terminated. Upon review of the evidence, the Court finds no clause requiring that payment is necessary for employees who are merely on the payroll on the first day of the month. The terminated employees in the present case failed to show up at work any day in September and were terminated on September 2, and 3, 1931. Accordingly, the Court finds that the defendant is entitled to take a credit for the payments made on behalf of those individuals to the Local Health and Welfare fund and Pension Fund. IT IS SO ORDERED. David D. Dowd, Jr. U.S. District Judge -5l- - ie : a o- =.) he ine APPENDIX "B" The Agreement executed February 20, 1981 provided, in part, as fcilows: ARTICLE I: RECOGNITION The employer recognizes the Union as the sole and exclusive bargaining agent on be- half of all employees of the employers, as hereinafter defined in Article II, with re- pect to wages, hours, and all other terms or conditions of employment. ARTICLE ITI: EMPLOYEES DEFINED-EXTENT OF BARGAINING UNIT The term “employees", as used in this Agreement, shall include Driver-Salesmen, Special Drivers, Swing Drivers, Over-the- Road Drivers, Helpers and Warehousemen, Garage Mechanics and Garage Maintenance employees. ARTICLE VI: UNION SHOP CLAUSE It shall be a condition of employment that all employees of the employers covered by this Agreement, who are members of the Union in good standing on the effective date of this Agreement, shall remain members in good standing by the payment of membership dues and those who are not members on the effec- tive date of this Agreement shall, on the thirty-first (31st) day following the effective date of this Agreement, become and remain members in good standing in the Union by payment of membership dues. It @j<- shall also be a condition of employment that all employees covered by this Agree- ment and hired on or after its effective date shall on the thirty-first (3lst) day following the beginning of such employment, become and remain members in good standing in the Union by payment of membership dues. ARTICLE XIV: HEALTH AND WELFARE The employers agree to contribute to the Teamsters Local No. 348 Health and Welfare Fund the following amounts for each employee covered by this Agreement: Effective January 1, 1981 and January 1, 1982 and January 1, 1983, a sum not to exceed a maximum of ten percent (10%) in- crease in monthly contributions; it being understood that effective January 1, 1980, the sum of One Hundred Eighty-Five Dollars ($185.00) per month is the contribution figure which is presently being made by the employer to tine Teamsters Local No. 348 Health and Welfare Fund for each individual affected employee. The employer shall continue to pay contri- butions for employees for a period of three (3) months if the employee is absent because of illness or off-the-job injury or layoff. The employer shall continue to pay contri- butions for a period of six (6) months if the employee is absent because of: an on-the- job injury. The employer shall remit all contributions by the 10th Gay of each month for that month. Late contributions shall be subject to a ten percent (10%) late charge ... o20 + ARTICLE XVII: PENSION Effective June 1, 1980, the employer shall contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of Forty-Six Dollars ($46.00) per week for each regular employee covered by this Agree- ment. Effective June 1, 1981, the employer shall increase said contribution to Fifty-One Dollars ($51.00) per week for each regular employee covered by this Agreement. Effective June 1, 1982, the employer shall continue to pay the sum of Fifty-One Dollars ($51.00) per week as contribution to said fund for each regular employee covered by this Agreement plus any increase in contri- butions as same are negotiated in the National Freight Agreement. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2450%3A2. Public record. Not legal advice.