Contractors, Laborers, Teamsters & Engineers Health and Welfare Plan v. Hroch

Decision Date13 March 1985
Docket NumberA,No. 1140,No. 84-1328,1140,84-1328
Parties118 L.R.R.M. (BNA) 3070, 102 Lab.Cas. P 11,401 CONTRACTORS, LABORERS, TEAMSTERS AND ENGINEERS HEALTH AND WELFARE PLAN; Contractors, Laborers, Teamsters and Engineers Pension Plan; Omaha-Council Bluffs Laborers LocalHoliday Trust; Laborers Training Fund and Construction and General Laborers Union, Localppellants, v. Robert HROCH, d/b/a Associated Wrecking Company, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

David Weinberg, Omaha, Neb., for appellants.

Dennis E. Martin, Omaha, Neb., for appellee.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HEANEY, Circuit Judge.

This matter is before this Court for the second time. In Contractors Health & Welfare Plan v. Associated Wrecking Co., 638 F.2d 1128, 1134 (8th Cir.1981), we held that the plaintiffs (the Construction and General Laborers Union No. 1140 (the Union) and the Contractors, Laborers, Teamsters and Engineers Health and Welfare Plan, the Omaha-Council Bluffs Laborers Local No. 1140 Holiday Trust, the Contractors, Laborers, Teamsters and Engineers Pension Plan, and the Laborers' Training Fund (collectively, the Trusts)) could enforce a prehire agreement (authorized by 29 U.S.C. Sec. 158(f) (1982)) with the defendant, Associated Wrecking and Salvage Company (the Company), even though the Union never achieved majority status among the Company's workers. 1 We remanded for a determination of the "interpretation, application, or duration of the parties' agreement." The court on remand found the Company liable for contributions under the agreement, but held that the Union failed to satisfy its burden of proof on the issue of damages. For the reasons set forth below, we reverse and remand.

I. FACTS.

On June 9, 1975, the Company entered into a "participation agreement" with the Union under which the parties agreed to abide by the terms and provisions of collective bargaining agreements between the Union and the Associated General Contractors Employers Association of Omaha, Nebraska, a/k/a the Omaha Building Contractors Employers Association 2; the Heavy Contractors Association, Inc., of Omaha, Nebraska; the Building Construction Employers Association, of Lincoln, Nebraska, Inc.; and the Council Bluffs Contractors Association, Inc. of Council Bluffs, Iowa. These agreements apply to a wide range of workers which are classified under the rubric "construction and general laborers" and cover a geographical area which includes most of the southwestern quarter of Iowa and the eastern third of Nebraska. The Company also agreed to abide by all terms of the Trust agreements 3 and to make contributions to the Trusts for each hour worked by any of its employees who performed construction or general laboring work within the meaning of the designated collective bargaining agreements and within the geographical coverage of these agreements. The prehire agreement also bound the employer to any amendments, modifications or changes executed by the Union and the employers associations with respect to contributions to the Trusts.

The trust agreements require the employer to make monthly reports to the Trusts which provide the name, classification, social security number, hours worked and the amount of contribution earned by each covered employee. The agreements provide that the employer shall also make all additional reports required by the trustees, and authorize the trustees to arrange for an audit by independent certified public accountants of the payroll records of any employer in connection with potential defaults with respect to contributions and/or reports. The agreements further provide that, in the event of default in payments, the employer must pay all expenses of collection incurred by the trustees, including but not limited to attorneys' fees, court costs and accounting costs.

The Company did not submit the reports and did not pay contributions. In response, the Union and the Trusts, on August 2, 1977, brought this action against the Company under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. Sec. 185 (1982), seeking specific enforcement of the prehire agreement for contributions allegedly owed by the Company to the Trusts. 4 The Union and the Trusts claimed that, because the Company had not submitted the reports required by the trust agreements, they would be unable to prove damages with the specificity required by the law of damages, and thus that the Court should order the Company to specifically perform its obligation to submit accurate reports on the contributions due and to pay the contracted amount per hour for all covered employees into the Trusts. Although the plaintiffs' complaint is ambiguous, we construe it as also requesting the Court to order a compliance audit, if necessary, and attorneys' fees and costs.

The Company moved for summary judgment, and attached an affidavit by its president, Mr. Robert Hroch, which admitted that he signed the participation agreement and, significantly, admitted that after the agreement was signed, the Company had employed persons referred to in the applicable collective bargaining agreements. The Company contended that the agreement was unenforceable, however, because the Union had not obtained majority support among the Company's employees. The district court granted the motion, 484 F.Supp. 582, but this Court reversed and remanded for a determination of the amount which the Company owed the Trusts.

On remand, the Court determined that the Company was not required to make any contributions to the Trusts because the Union and the Trusts failed to prove that the allegedly covered employees were workers of the type covered by the collective bargaining agreements and failed to prove that the employees worked within the geographical areas covered by the agreements. Finally, the court determined that, although the evidence showed that the Company employed one "construction or general laborer" within the covered geographical area, the Union and the Trusts had not introduced into evidence a collective bargaining agreement to which the Company had agreed to be bound. The court noted that the plaintiffs introduced an agreement between the Union and the Omaha Building Contractors Employers Association while the participation agreement referred to this Omaha employers organization by its former name, the Associated General Contractors Employers Association of Omaha, Nebraska.

The Union and the Trusts appeal.

II. DISCUSSION.
A. Compliance with the Trust Agreements.

The appellants contend that the district court failed to try the case consistent with this Court's remand; that the district court erred in holding them to a strict standard of specificity of damages when their action was for specific performance and not for damages; that the lack of more specific proof was due to the Company's failure to fulfill its obligation under the trust agreements to keep accurate records; and that the court's ruling is contrary to the evidence. The Company contends that the court on remand complied with this Court's mandate. It contends that the plaintiffs failed to meet their burden of proof for specific performance of the participation agreement because they failed to show that any of the Company's employees were covered by the collective bargaining agreements referred to in the prehire agreement.

After carefully reviewing the record and the arguments of the parties, we agree with the appellants that this case was improperly tried and that the district court's ruling is contrary to the evidence and, thus, we remand again for further proceedings. The district court apparently proceeded on the theory that the burden of proof was entirely on the Union to prove not only that contributions were due, but to prove the exact amount of contributions due. The problem with this approach is that the plaintiffs' complaint admitted that, because the Company had failed to comply with its trust obligation to keep and submit accurate payroll reports and contributions, they would be unable to prove damages with the specificity required by the law of damages, and thus pled for specific performance of the prehire agreement and the trust agreements. The attorney for the Union and the Trusts was of little assistance to the district court in determining what was entailed by their theory of specific performance. We understand their claim, however, as one for specific application of the terms of the trust agreements to which the Company was bound.

The plaintiffs introduced into evidence exhibits three through six, which are the agreements and declarations of trust for the Pension, Health and Welfare, Holiday and Training Trusts referred to in the prehire agreement. Each agreement contains a similar section on the procedures to be followed in the reporting and collection of contributions due the Trusts.

Article V of the Holiday Trust Agreement, for example, provides as follows: Section One sets forth the employer's obligation to calculate and submit the required amount of contributions. Section Two discusses the duration of the agreement. Section Three provides that the employer "shall furnish the name, classification, social security number and hours worked of any and all employees described herein and employed by such employer during such month and shall remit the same to the Trustees before the thirtieth day of the month following the month such contribution was earned, together with the amount specified in the existing collective bargaining agreement." Section Five provides that "an employer in default on payments for thirty days may be required to pay such reasonable rate of interest as the Trustees may fix on the money due to the Trustees from the date when the payment was due to the date when full payment is made, together with all expenses of collection...

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