Opinion
No. 00 C 4383
March 17, 2003
MEMORANDUM OPINION AND ORDER
This ERISA action has been pending for a near eternity in comparison with mine-run actions of its type, in which Trustees for one or more employee benefit plans seek to recover assertedly unpaid contributions from participating employers. It is unnecessary to recount the history of this nearly three-year-old lawsuit — suffice it to say that defendant William Green Homes, RMC ("Green") originally defaulted, then came into the case but failed to present any meritorious defense, and most recently has been delinquent over an extended period of time (some of which has been excusable due to circumstances affecting the unavailability of its defense counsel) in responding to the motion of plaintiff Gerald Sullivan as Trustee ("Trustee") to prove up damages.
At this morning's continued date for the consideration of Trustee's prove-up petition, Green's counsel made it clear that the only purported defense being offered on its behalf was that Green did not employ anyunion members covered by the benefit plans for which Trustee acts. As paragraph 2 of Green's November 25, 2002 objections to the prove-up petition states on that score:
Defendant did not ever employ any members of the Journeymen Plumbers or Chicago Journeymen Plumbers' Local Union 130, U.A. as required by the Memorandum Agreement.
But there is an easy answer to that mistaken position:
1. It is not union membership but rather covered work that defines an employer's obligation to make ERISA contributions (see such cases as Central States, S.E. S.W Areas Pension Fund v. Joe McClelland, Inc., 23 F.3d 1256, 1258 (7th Cir. 1994) and Moriarty v. Larry G. Lewis Funeral Directors Ltd., 150 F.3d 773, 776 (7th Cir. 1998)). Green's reference to "members of the Journeymen Plumbers" reflects a misapprehension that would substitute union membership for the true criterion of an employee's working as a journeyman plumber as the status that triggers the ERISA contribution obligation.
2. That point is further confirmed (a) by the introduction to the February 21, 2000 Memorandum Agreement ("Agreement") between Green and the union, which identifies Green as an "Employer" that "regularly employs not less than two (2) Journeymen Plumbers," and (b) by the language of Agreement ¶ 1:
The Employer recognizes the Union as the exclusive collective bargaining agent for all of its employees who perform any of the work within the trade and territorial jurisdiction of the Union as set forth in the agreement and agreements referred to in paragraph 2, below.
3. Indeed Green, having entered into the Agreement, is really not in a position dispute that it regularly employs journeymen plumbers. Whether those employees are or are not union members, as contrasted with their being plumbers for whom the union is the designated collective bargaining agent, is entirely irrelevant.
[Footnote by this Court] As is normally the case with multiemployer ERISA plans, the agreement referred to in Agreement ¶ 1 is one between the union and . . . an employer association (in this instance the Plumbing Contractors Association of Chicago and Cook County).
Accordingly this Court rejects Green's only asserted putative defense to this action. Trustee's prove-up established the total damages as of November 15, 2002 as $153,427.50 and stated additionally that interest would continue to accrue thereafter at the rate of $899.05.
It is also true that Trustee's counsel has been required to expend modest amounts of time since then in attending a couple of status hearings, but those cannot have affected the earlier calculation appreciably. Judgment is therefore ordered to be entered in favor of Gerald M. Sullivan, not individually but as Trustee of Plumbers' Pension Fund, Local 130, U.A.; Plumbers' Welfare Fund, Local 130, U.A.; The Trust Fund For Apprentice and Journeymen Education and Training, Local 130, U.A.; and Chicago Journeymen Plumbers' Local Union 130, U.A., Group Legal Services Plan Fund and against William Green Homes, RMC iN the sum of $156,124.65.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that final judgment is entered in favor of Gerald M. Sullivan, not individually but as Trustee of Plumbers' Pension Fund, Local 130, U.A.; Plumbers' Welfare Fund, Local 130, U.A.; The Trust Fund For Apprentice and Journeymen Education and Training, Local 130, U.S.; and Chicago Journeymen Plumbers' Local Union 130, U.S., Group Legal Services Plan Fund and against William Green Homes, RMC in the sum of $156,124.65.