8 F.3d 1195 (7th Cir. 1993), 92-3712, GCIU Employer Retirement Fund v. Chicago Tribune Co.

Docket Nº:92-3712.
Citation:8 F.3d 1195
Party Name:GCIU EMPLOYER RETIREMENT FUND, formerly known as International Printing Pressmen and Assistant's Union of North America Employer Retirement Fund, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellee.
Case Date:November 03, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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8 F.3d 1195 (7th Cir. 1993)


International Printing Pressmen and Assistant's

Union of North America Employer

Retirement Fund, Plaintiff-Appellant,



No. 92-3712.

United States Court of Appeals, Seventh Circuit

November 3, 1993

Argued May 6, 1993.

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Charles Orlove, David S. Allen (argued), Jacobs, Burns, Sugarman & Orlove, Chicago, IL, for plaintiff-appellant.

Alan L. Marx (argued), Joan D. Roy, E. Andrew Norwood, King & Ballow, Nashville, TN, for defendant-appellee.

Before CUDAHY, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Dismayed by plaintiff-appellant GCIU Employer Retirement Fund's perceived lack of intent to prosecute, the district court sua sponte dismissed with prejudice the Fund's suit against defendant-appellee Chicago Tribune Company. Because we conclude the district court abused its discretion by dismissing the Fund, we reverse and remand.


Chicago Tribune Company is an Illinois corporation engaged in the business of newspaper publishing. The Fund's trustees administer a pension plan for the Tribune's employees. Pursuant to both a "pension subscription agreement" and a succession of collective bargaining agreements with the Chicago Web Printing Pressmen's Union Number 7, the Tribune regularly contributed to the Fund on behalf of the Tribune's pressroom employees. In July 1985, the Tribune and the pressmen's union were unable to resolve their difference regarding their next collective bargaining agreement; dissatisfied, the pressmen struck. The Tribune responded by hiring permanent replacements.

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Suspecting that the Tribune had ceased making the required pension contributions to the Fund, the pressmen's union exhorted the Fund to perform a payroll audit of the Tribune's books and records to insure the Tribune had in fact made the appropriate pension contributions for each union pressman and each replacement worker. The Tribune rebuffed the Fund's demand on four separate occasions. Finally, on October 15, 1986, the Fund's trustees sued the Tribune to compel an audit and to force the payment of any shortfalls the audit might reveal. 1

The Tribune moved to dismiss the Fund's complaint on the basis that the most recent collective bargaining agreement with the pressmen's union had expired, thereby extinguishing its obligation to contribute to the Fund. The Fund responded to the motion to dismiss by relying upon the pension subscription agreement, which, it claimed, obligated the Tribune to contribute to the Fund at the same rate as had been required in the expired collective bargaining agreement. The Fund moved for summary judgment.

The district court referred the Tribune's motion to dismiss and the Fund's motion for summary judgment to Magistrate Judge Elaine Bucklo for a report. After concluding the pension subscription agreement obligated the Tribune to continue its contributions to the Fund, in June 1988 Magistrate Judge Bucklo recommended the former motion be denied and the latter granted. The district court agreed with Magistrate Judge Bucklo's recommendations and purported to enter judgment in the Fund's favor.

Upon hearing the news, the Tribune consented to an audit and also appealed the district court's judgment. The audit allegedly revealed a shortfall, and the Tribune's appeal was short-lived. In October 1989, this court dismissed the appeal for lack of appellate jurisdiction because the district court's judgment failed to set out specifically the relief to which the Fund was entitled; in effect, it was held no judgment had been entered.

Rather than return to the district court to insure that the judgment would be properly entered, the Fund left the matter hanging and instead chose to try to negotiate a settlement. In February 1990, the two sides tentatively agreed that the Tribune would contribute a specific amount to the Fund, subject to the preparation of an acceptable written instrument embodying the agreement. The Tribune submitted a proposed draft which, according to the Fund, was worded in a way that would have released the Tribune from any obligation to make contributions on behalf of the strikers. The Fund found the Tribune's language unsatisfactory because several months earlier an NLRB administrative law judge considering a parallel or similar unfair labor practices claim by the Tribune's pressmen had issued a "make whole" order in favor of the pressmen and against the Tribune; the Fund interpreted the order to include pension contributions, an interpretation which, if correct, would supposedly entitle the Fund to substantial additional contributions. The Fund redrafted the proposed agreement to its own liking but not to the Tribune's; in August 1990 the Tribune rejected the Fund's revisions.

In October 1990, the Tribune's attorneys again broached the possibility of settlement. Several conferences failed to resolve the respective parties' differences, and in August 1991, the parties reached an impasse. During the entire twenty-two month negotiation period, neither party had any contact with the district court whatsoever.

On August 15, 1991, the Tribune filed for summary judgment. 2 It took the position

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that a recently-signed collective bargaining agreement both superseded the pension subscription agreement and eliminated any requirements that it contribute additional amounts to the Fund. Shortly thereafter, the Fund filed its own motion for summary judgment. When the parties came...

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