TRUSTEES FOR MICH. LABORERS v. VANDER VEEN CONST.

• Decision Date: 15 March 1989
• Docket Number: No. L88-51-CA5.,L88-51-CA5.
• Citation: 736 F. Supp. 138
• Parties: TRUSTEES FOR MICHIGAN LABORERS HEALTH CARE FUND, State of Michigan Laborers District Council Pension Fund, State of Michigan Laborers District Council Training and Education Fund; Trustees for Michigan Carpenters Council Health Care Fund, Michigan Carpenters Council Pension Fund, Michigan Carpenters Council Apprenticeship & Training Fund, and Michigan Chapter, Associated General Contractors of America, Plaintiffs, v. M.M. VANDER VEEN CONSTRUCTION CO., Defendant.
• Court: U.S. District Court — Western District of Michigan

736 F. Supp. 138

TRUSTEES FOR MICHIGAN LABORERS HEALTH CARE FUND, State of Michigan Laborers District Council Pension Fund, State of Michigan Laborers District Council Training and Education Fund; Trustees for Michigan Carpenters Council Health Care Fund, Michigan Carpenters Council Pension Fund, Michigan Carpenters Council Apprenticeship & Training Fund, and Michigan Chapter, Associated General Contractors of America, Plaintiffs, v. M.M. VANDER VEEN CONSTRUCTION CO., Defendant.

No. L88-51-CA5.

United States District Court, W.D. Michigan, S.D.

March 15, 1989.

Durant, Freeberg, Schanz & Connelly by Edward R. Freeberg, Kalamazoo, Mich., for Laborers.

Gemrich, Moser, Bowser, Fette & Lohrmann by Randall S. Schau, Kalamazoo, Mich., for Carpenters.

Howard & Howard by Brad A. Rayle, Thomas M. Ripley, Bloomfield Hills, Mich., for defendant.

OPINION

ROBERT HOLMES BELL, District Judge.

Defendant employer moves for summary judgment on plaintiff fund trustees' claims for contributions for (1) periods after the defendant employer allegedly repudiated a prehire agreement with the union site, and (2) periods after the expiration of controlling collective bargaining agreements.

Defendant employer M.M. Vander Veen Construction Company (Vander Veen) is a construction company. Plaintiffs are trustees for employee benefit funds, established pursuant to 29 U.S.C. §§ 186 and 1001, and a general contractor's association. Specifically they are: (1) Trustees for Michigan Laborers Health Care Fund, State of Michigan Laborers District Council Pension Fund, State of Michigan Laborers District Council Training and Education Fund (Laborers), (2) Trustees for Michigan Carpenters Council Health Care Fund, Michigan Carpenters Council Pension Fund, Michigan Carpenters Council Apprenticeship & Training Fund (Carpenters), and (3) Michigan Chapter, Associated General Contractors of America (Contractors).

All three plaintiffs seek contributions from Vander Veen based upon collective bargaining agreements obligating Vander Veen to contribute to the Carpenters and Laborers funds and the Contractor's Industry Advancement Contributions fund. Plaintiff Laborers also asserts that an Employer Registration form between the Trustees for Michigan Laborers' Insurance Fund, Michigan Laborers' Vacation Fund, and State of Michigan Laborers' District Council Pension Fund and Vander Veen obligates Vander Veen to contribute to the funds.

Defendant Vander Veen has entered into various collective bargaining agreements with plaintiffs dating back to at least 1970. Vander Veen did not enter these collective bargaining agreements as a member of a multi-employer bargaining organization, such as, the Southwestern Michigan Contractors' Association, Michigan Chapter, Associated General Contractors of America (Contractors). Rather, Vander Veen entered into the collective bargaining agreements under a separate contract as "an employer who is not a member of the signatory group covered" by the collective bargaining agreement between the Contractors and Laborers or Carpenters. On April 9, 1970, Vander Veen signed an employer registration form (Laborers' Exhibit E) which obligated Vander Veen to contribute to the employee benefit funds as specified in the current and future collective bargaining agreements between the Contractors and Laborers. The registration form also purported to obligate Vander Veen to abide by all terms of the trust plans then in effect or amended. It also contained a year-to-year roll-over provision with a 60 day pre-anniversary notice requirement for termination. Further, the agreement applied to all of Vander Veen's work within a 23 county area in which the Laborers' operated. On October 18, 1971, (Plaintiffs' Exhibit F) March 9, 1979, (Plaintiffs' Exhibit F) and June 15, 1979, (Plaintiffs' Exhibit I) Vander Veen similarly obligated itself to the terms and conditions of collective bargaining agreements with the Carpenters. That agreement also contained a roll-over provision obligating Vander Veen under subsequent agreements between the Contractors and Carpenters. Essentially these agreements obligated Vander Veen to comply with the terms of the collective bargaining agreements between the Contractors and the Laborers and Carpenters from term to term for projects in the areas in which the Laborers and Carpenters operated. Other agreements also exist in which handwritten terms limit their scope to commercial as opposed to residential construction (Plaintiffs' Exhibits H and J) or to a specific project.

During the period relevant to this action Vander Veen appears to have operated throughout southwest Michigan as a project-to-project employer (See Vander Veen Deposition). One of these projects was construction work in Grand Haven, Michigan, at a Meijers, Inc. facility. (Grand Haven project). On July 13, 1984, Vander Veen notified the Carpenters and the Laborers unions and their affiliated benefit funds, including all plaintiffs in this present action, that Vander Veen was repudiating all prehire agreements relating to the Grand Haven project. Specifically the letters stated:

You are hereby notified that the M.W. Vander Veen Company repudiates such agreement as it relates to the work conducted on the job site of Meijer Store No. 18, Grand Haven, Michigan. From and after this date, M.W. Vander Veen Company will not be bound by any of the terms of such agreement on the above project, and will not be obligated to make fringe benefit contributions called for in the agreement based on such work. (emphasis in original)

In its present motion employer Vander Veen moves for summary judgment on plaintiff fund trustees' claims for contributions for (1) periods after the defendant employer allegedly repudiated a prehire agreement with the unions as to the Grand Haven project, and (2) periods after the expiration of controlling collective bargaining agreements. The parties dispute the legal effect of both the employment agreements and recent case law on their claims. This Court must decide whether it, as opposed to the National Labor Relation Board (NLRB), has jurisdiction over an action in which significant union representational issues exist. Also, this Court must decide whether to retroactively apply the recent case of John Deklewa & Sons, 282 NLRB 184, aff'd 843 F.2d 770 (3rd Cir.1988), which declared unilateral repudiations of prehire agreements to be ineffective. Further, if Deklewa does not apply retroactively, then this Court must determine whether Vander Veen's attempted repudiation of the prehire agreement was effective. Additionally, this Court must determine the effect of the attempted repudiation on the employer registration form. Finally this Court is requested to when the collective bargaining agreements expired and whether plaintiffs can enforce the expired collective bargaining agreements.

Jurisdiction

This Court must decide whether it has jurisdiction over this action under Section 301 of the Labor Relation Management Act of 1947, 29 U.S.C. § 185, (Taft-Hartley) and Section 502 of the employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132, (ERISA) as an action arising out of an alleged past, not current, violation of a collective bargaining agreement. However, plaintiffs' claims implicate representational issues of the unions' majority status, which are within the original jurisdiction of the NLRB. National Automatic Sprinkler Industry Pension Fund v. American Automatic Fire Protection, 680 F.Supp. 731 (D.M.D.1988). Even though representation issues are within the primary jurisdiction of the NLRB, Vander Veen has presented no authority holding that the NLRB has exclusive jurisdiction over representational issues. Moreover, the present case does not involve current employment for representational purposes. Rather it concerns the majority status of the unions on a completed project for accounting, and not current representational, purposes. This Court determines that the representational issue in this action does not deprive this Court of jurisdiction over this action.

Retroactive Application of Deklewa

Plaintiffs argue that under John Deklewa & Sons, 282 NLRB 184, aff'd 843 F.2d 770 (3rd Cir.1988), Vander Veen cannot effectively argue that it repudiated its prehire agreements with the unions. In Deklewa the NLRB held that unilateral repudiations of prehire agreements are ineffective and applied its ruling to all cases pending before it. Prior practice required the union to litigate before the NLRB the issue of the union's majority status, if the union contested the employer's repudiation of a prehire agreement. After Deklewa an NLRB election would determine a union's majority status. The NLRB reasoned that a "no unilateral repudiation" rule would promote free choice by employees and stability in labor relations.

Retroactive application of case law requires careful analysis. In Mesa Verde Construction Company v. Northern California District Council of Laborers, 820 F.2d 1006 (9th Cir.1988), the court remanded an appeal on the issue of Deklewa's retroactivity to be decided in accord with the Supreme Court's analysis of the propriety of retroactive application of decisions in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In Chevron the Court considered: (1) whether the new decision overruled clear precedent on which litigants had relied or resolved a question of first impression which was not clearly foreshadowed, (2) the merits and demerits of the particular case and the purpose and effect of rule to determine whether retrospective application would advance its purpose, and (3) the inequity, hardship, and injustice of retroactive application.

In the present case Veen clearly relied on prior labor practice under the standing law of the Sixth Circuit permitting an employer to repudiate prehire agreements. United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association,...