GCIU Employer Retirement Fund v. Chicago Tribune Co.

• Decision Date: 28 November 1995
• Docket Number: No. 95-1065,95-1065
• Parties: Pens. Plan Guide P 23915Y GCIU EMPLOYER RETIREMENT FUND, Plaintiff-Appellee, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 862

66 F.3d 862

Pens. Plan Guide P 23915Y

GCIU EMPLOYER RETIREMENT FUND, Plaintiff-Appellee, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellant.

No. 95-1065.

United States Court of Appeals Seventh Circuit.

Argued May 18, 1995.

Decided Sept. 25, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 28, 1995.

Charles Orlove, David S. Allen (argued), Jacobs, Burns, Sugarman, Orlove & Stanton, Chicago, IL, for GCIU Employer Retirement Fund.

R. Clay Bennett, Keck, Mahin & Cate, Chicago, IL, Alan L. Marx (argued), Patrick M. Thomas, King & Ballow, Nashville, TN, for Chicago Tribune Company.

Before FLAUM and MANION, Circuit Judges, and SHARP, District Judge. ^*

MANION, Circuit Judge.

The GCIU Employer Retirement Fund ("Fund") sued the Chicago Tribune, Inc. ("Tribune") pursuant to section 502(a)(3) of ERISA seeking an audit of the Tribune's payroll and records, and seeking collection of any delinquent pension contributions that an audit might reveal. Following a complicated procedural history, which included two prior appeals to this court, the district court granted the Fund summary judgment and denied the Tribune summary judgment, holding the Tribune was liable for delinquent pension contributions. The Tribune appeals. We reverse.

I. Background

Since the earlier 1920's, the Tribune has entered into Collective Bargaining Agreements ("CBAs") with its employees. In addition to these CBAs, on January 17, 1979 the Tribune entered into a Pension Subscription Agreement with its employees' union, the Chicago Web Printing Pressmen's Union ("Union"). The terms of the 1979 Pension Subscription Agreement required the Tribune to "contribute monthly to the IP & GCU-Employer Retirement Fund the sum of $2.70 per straight-time shift worked for Journeymen and $1.89 per straight-time shift worked for Apprentices and Junior Pressmen for each employee in the collective bargaining unit represented by the Union."

A little over a year later, on February 29, 1980, the Tribune and the Union entered into a new CBA ("1980 CBA"). The 1980 CBA addressed numerous employment issues, including the Tribune's duty to contribute to the employees' pension fund ("Fund"). Specifically, Section 20 of the 1980 CBA required the Tribune to make pension contributions to the Fund at the same level as that set forth in the Subscription Agreement, namely $2.70 per straight-time shift worked for Journeymen and $1.89 per straight-time shift worked for Apprentices and Junior Pressmen. Section 20 of the 1980 CBA also defined the term "straight-time," which was left undefined by the 1979 Subscription Agreement. Additionally, Section 22A of the 1980 CBA established a Benefits Committee which was responsible for determining appropriate increases in the pension contribution rates. The 1979 Subscription Agreement had not provided for increases in the pension contribution rates. The 1980 CBA also contained an integration clause which provided:

SECTION 46. It is mutually agreed that this contract, the Job Security Lists, the letter from the Association to the Union dated February 29, 1980, and the Supplementary Agreement between the parties dated February 29, 1980 shall constitute the entire agreement between the parties.

Following the execution of the 1980 CBA, the Tribune made contributions to the Fund at the initial rates established by the 1980 CBA of $2.70 and $1.89. On April 3, 1980 and April 3, 1981, pursuant to section 22A of the 1980 CBA, the Benefits Committee raised the contribution rates, the last increase setting monthly pension contributions rates at $6.00 per straight-time shift for Journeymen and $4.20 per straight-time shift for Apprentices and Junior Pressmen. The Tribune then contributed to the Pension Fund at these higher rates established pursuant to section 22A.

On April 2, 1985, the 1980 CBA expired. At that time the Tribune and the Union had not yet entered into a new collective bargaining agreement. The Tribune nonetheless continued to make pension contributions to the Fund during contract negotiations. The parties, however, were unable to negotiate a new contract and the deadlock eventually ended in a strike on July 18, 1985. Approximately 100 employees represented by the Union continued to work for the Tribune during the strike and replacement workers filled the remaining vacancies. The Tribune continued to make pension contributions to the Fund on behalf of the non-striking workers. During this time, however, the Union came to believe that the Tribune's contributions were insufficient to cover its obligations. Accordingly, the Fund requested an audit of the Tribune's books and records to ensure that after July 18, 1985 the Tribune had in fact made the appropriate pension contributions for each union pressman and each replacement worker. The Tribune refused the Fund's request, prompting the Fund's trustees to file suit under ERISA to compel an audit and to collect any delinquent pension contributions. The Tribune later submitted to an audit. This audit revealed deficiencies in the Tribune's pension contributions beginning on the strike date.

Based on the results of the audit, the Fund moved for summary judgment claiming that the Tribune was delinquent in making pension contributions. In its motion, the Fund argued that even after the expiration of the 1980 CBA, the Tribune was required to make pension contributions under the 1979 Subscription Agreement. The Fund sought to recover contributions from the Tribune from July 18, 1985 to January 18, 1989 under the 1979 Subscription Agreement. ¹ The Tribune also moved for summary judgment, arguing that it was not required to make pension contributions following the expiration of the 1980 CBA.

After two appeals, ² the district court finally reached the merits of the Fund's litigation. The district court then granted the Fund summary judgment and denied the Tribune summary judgment, holding that the Tribune was responsible for making pension contributions to the Fund under the terms of the 1979 Subscription Agreement. The parties stipulated to the amount of the delinquency while reserving the right to appeal, making the judgment final. INB Banking Co. v. Iron Peddlers, Inc., 993 F.2d 1291, 1292 (7th Cir.1993). The Tribune now appeals.

II. Analysis

As a preliminary matter, we note that the Fund argues that this court should summarily affirm the district court's decision because the Tribune violated Circuit Rule 30. Circuit Rule 30 requires an appellant to include "the judgment or order under review" in the appendix to its opening brief. The Tribune in this case included the district court's opinion granting summary judgment to the Fund, but inadvertently failed to include the one-page order wherein the district court entered final judgment based on the parties' stipulation as to damages. The Fund claims that the Tribune's failure to include this judgment should warrant summary affirmance. As we stated in Sparrow v. Yellow Cab Co., 273 F.2d 1, 4 (7th Cir.1959), however, in most instances, because of the importance of questions raised on appeal, the court will overlook alleged inadequacies in an appellant's appendix and consider the merits of the appeal. See also United States v. Jordan, 890 F.2d 968, 972 n. 7 (7th Cir.1989) (reviewing case notwithstanding failure to comply with Rule 30). Given the procedural complexity of this case, the inadvertent exclusion of this order is minor indeed. And in light of the Tribune's response in its reply brief (an attestation to the inadvertency of the omission, an apology, and the inclusion of the judgment) this court will excuse this deficiency and proceed to the merits.

At issue here is whether the Tribune was required to pay pension benefits to the Fund under the 1979 Subscription Agreement, even though the duty to make such contributions under the 1980 CBA had expired. The district court, on cross-motions for summary judgment, held that it was. We review the grant or denial of summary judgment de novo. Murphy v. Keystone Steel & Wire Co., 61 F.3d 560, 564 (7th Cir.1995). Summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id.

In this case, there is no dispute over the material facts and the issue presented is solely one of contract interpretation--a question of law. Id. at 564-65. Resolution at the summary judgment stage is therefore appropriate. Id. ("Summary judgment is particularly appropriate in cases involving the interpretation of contracts."). In addition, we note that this case was brought pursuant to ERISA. Federal common law principles therefore govern. Phillips v. Lincoln Nat. Life Ins. Co., 978 F.2d 302, 307 (7th Cir.1992) (federal common law rules of contract interpretation apply in ERISA action). These principles require us to interpret the terms of a contract " 'in an ordinary and popular sense as would a [person] of average intelligence and experience.' " Phillips, 978 F.2d at 308 (quoting Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir.1990)). Extrinsic evidence should not be used where the contract is unambiguous. Bidlack v. Wheelabrator Corp., 993 F.2d 603, 608 (7th Cir.1993).

Applying these principles to the case at hand, we conclude that the district court erred in holding that the Tribune was required to contribute to the Fund under the 1979 Subscription Agreement. The plain and unambiguous language of the 1980 CBA provided that: "It is mutually agreed that this contract, the Job Security Lists, the letter from the Association to the Union dated February 29, 1980, and the Supplementary Agreement between the parties dated February 29, 1980 shall constitute the entire agreement between the parties." The 1979 Subscription Agreement was not one of the listed agreements. Accordingly, by operation of the above integration clause, the Tribune's obligations under the 1979 Subscription Agreement were superseded by the ...