In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-2257, 99-3014

CENTRAL STATES, SOUTHEAST AND

SOUTHWEST AREAS PENSION FUND,

and HOWARD MCDOUGALL,

Plaintiffs-Appellees,

v.

KROGER COMPANY,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 93 C 3669--John F. Grady, Judge.

Argued February 17, 2000--Decided September 15, 2000

 Before HARLINGTON WOOD, JR., COFFEY and RIPPLE, Circuit

Judges.

 RIPPLE, Circuit Judge. Central States, Southeast

and Southwest Areas Pension Fund (the "Fund")

brought this action under sec. 515 of ERISA, 29

U.S.C. sec. 1145, against the Kroger Co.

("Kroger") to recover delinquent pension

contributions for certain employees at Kroger’s

warehouse center in Atlanta, Georgia. Kroger’s

obligation to make these contributions is defined

by a Collective Bargaining Agreement ("CBA")

negotiated by Kroger and the union representing

the Atlanta employees.

 This is a successive appeal; familiarity with

our first opinion is assumed. See Central States,

Southeast & Southwest Areas Pension Fund v.

Kroger Co., 73 F.3d 727 (7th Cir. 1996) ("Kroger

I"). In that opinion, we held that the meaning of

"part-time," as used in the CBA, was ambiguous.

We explained that "part-time" could refer either

to regular employees who worked a shorter week or

to "casual" employees. See id. at 732. Because of

this ambiguity we remanded the case to the

district court for a determination of the meaning

of part-time. See id. at 733. 

 After additional discovery and a bench trial,
the district court resolved the ambiguous meaning

of "part-time" in favor of the Fund by holding

that "part-time" employees were "regular

employees," not casual employees, and that the

Fund, therefore, was entitled to the disputed

contributions. The district court entered a

judgment in favor of the Fund on liability and

later supplemented its judgment with an award of

attorneys’ fees and costs to the Fund. For the

reasons set forth in the following opinion, we

affirm the judgment of the district court. 

I

BACKGROUND

A.

 Kroger is a national grocery store chain with

operations in several states, including Georgia.

The warehouse employees and truck drivers at

Kroger’s warehouse center in Atlanta are

represented by the Local 528 chapter of the

International Brotherhood of Teamsters (the

"Union"). Since 1967, the employment relationship

between Kroger and its employees at this facility

has been governed by a CBA negotiated by Kroger

and the Union. Kroger’s participation in the Fund

began in 1971, and the CBA has defined Kroger’s

obligation to make pension contributions to the

Fund on behalf of the Atlanta employees. The CBA

between Kroger and the Union, although one

document, consists of two parts. The first part,

the Master Agreement, was negotiated by Kroger

and the Union and covers the Atlanta facility as

well as several other Kroger facilities

nationwide. The second part of the CBA, the Local

Supplement, applies only to the Atlanta facility.

As we explained in our previous opinion, both the

Master Agreement and the Local Supplement form "a

single, unitary contract" and, consequently, must

be read together. Kroger I, 73 F.3d at 731. 

 The Master Agreement defines who is a regular

employee and also differentiates between two

other types of employees--"probationary" and

"casual." Probationary employees are defined as

"new" employees who work on a trial basis for 30

to 60 days and who may be discharged at Kroger’s

discretion. CBA sec. 2.2. They become regular

employees at the end of their trial period and,

according to the Master Agreement, "shall be

placed on the regular seniority list." CBA sec.

2.2. On the other hand, "casual" employees are

defined as employees "hired on a short term

basis." CBA sec. 2.3. The Master Agreement states

that casual employees "may be employed from time

to time" for those facilities with a past

practice of hiring casuals. It contains no

specific limit on the duration of a casual

employee’s service. The number of casual

employees is limited to 10 percent of the work
force. See CBA sec. 2.3. The CBA provides that

casual employees "shall not receive fringe

benefits or accrue seniority." CBA sec. 2.3.

 Under the CBA, Kroger is obligated to make

pension contributions for each employee who has

been employed for 30 days or more and who is on

the "regular seniority list." CBA sec. 31.1. As

we explained in our previous opinion, "[t]he

effect of this provision is that Kroger is

required to make contribution to the Fund on

behalf of all probationary employees who had

completed their trial period, but not on behalf

of casual employees." Kroger I, 73 F.3d at 729.

Furthermore, the Master Agreement states that

Kroger must make contributions to the Fund for

"each regular or extra employee, even though such

employee may work only part-time." CBA sec. 31.4

(emphasis added). No contribution is required for

employees "who work either temporarily or in

cases of emergency." CBA sec. 31.4.

 Unlike the Master Agreement, the Local

Supplement does not differentiate between

"probationary" and "casual" employees. Instead,

the Local Supplement refers to "part-time" and

"full-time" employees, but it defines neither of

these terms. The Local Supplement also refers to

part-time employees as "part-timers." A few

characteristics of part-time employment

nevertheless emerge from the Local Supplement.

First, the Local Supplement caps the number of

"part-time" employees at 10 percent of the

warehouse employees. See CBA II.A.6. Also, parttime employees are permitted a limited form of

seniority: They may accrue seniority "only among

other part time employees." CBA II.D.2. Finally,

part-time employees must follow certain jobbidding procedures to obtain regular positions.

 The job-bidding process for part-time employees

first became part of the Local Supplement in

1985. Under the procedure established in 1985,

when a permanent job became available, the most

senior part-timer was required to bid on the

position. See CBA II.D.1. Failure to bid or to

bid successfully would result in termination from

Kroger. The bidding procedure was modified in

1988 so that part-timers were given an

opportunity to bid for a second regular position

if they failed to obtain a position on their

first bid. See CBA II.D.1 (1988). Starting in

1985 and continuing through the 1988 change, the

bidding procedure set forth in the Local

Supplement specified that a part-timer who had

obtained a bid position was required to work in

that position for a "trial period" of 21 days.

CBA II.D.1. If the employee’s performance proved

to be unsatisfactory during this trial period,

the Local Supplement allowed Kroger to return the
employee to his former part-time position.

 Prior to 1977, all newly hired employees at

Kroger’s Atlanta facility were designated as

probationary. In 1977, however, Kroger began

classifying all new employees at the Atlanta

facility as casuals. These employees were not

guaranteed fixed hours or schedules. Kroger would

place the new hires on a separate seniority list,

but those employees on the list did not have any

seniority status over regular employees. Rather,

the list was used to allow these employees, who

commonly were referred to as "part-timers" at the

Atlanta facility, to bid (in order of date of

hire) for regular jobs as those jobs became

available. Many of the employees hired as casuals

remained with Kroger for a lengthy period of time

and eventually became regular employees through

the bidding process. Once a part-timer became a

regular employee and was placed on the regular

seniority list, Kroger made pension contributions

on behalf of that employee to the Fund. As long

as the employee was designated as a casual,

however, no contribution was made. 

B.

 In 1991, the Fund conducted an audit of the

employment records at Kroger’s Atlanta facility

and concluded that, between December 28, 1986,

and December 30, 1989, Kroger had failed to make

pension contributions required under the CBA for

certain warehouse employees. The Fund therefore

brought this action against Kroger under sec. 515

of ERISA; it alleged that Kroger owed the Fund

over $200,000 in delinquent contributions. 

 In our previous opinion, we reversed the

district court’s grant of summary judgment in

favor of Kroger. The district court had

determined that the CBA was unambiguous and had

declared its meaning as a matter of law. On

appeal, we examined the CBA as a whole and

concluded that the term "part-time," as it was

used in the CBA, was susceptible to more than one

reasonable meaning. "Part-time," we explained,

could mean "casual" or it could refer to "a

regular employee who works a shorter week."

Kroger I, 73 F.3d at 732. Because the term "parttime" had more than one reasonable

interpretation, we held the CBA to be ambiguous.

Consequently, the meaning of the CBA could not be

determined as a matter of law, and we remanded

the case "for a determination of the meaning of

part-time." Id. at 733.

C.

1.

 On remand, the district court allowed additional

discovery and then conducted a bench trial. At
the conclusion of the trial, the district court

announced from the bench the four findings of

fact that would form the basis of its final

decision. Those findings of fact were: 

First, the employees in question were not "hired

on a short-term basis," nor were they "employed

from time to time," as defined in article 2.3 of

the master portion of the [CBA].

My second finding of fact is based upon the first

one. It is that the phrase "part-time" in the

local portion of the agreement is not the same as

and does not mean "casual" as defined in article

2.3 of the master portion of the agreement.

My third finding of fact is that the local union

representatives and the negotiators acquiesced in

the treatment of all new hires as "part-timers"

not entitled to pension and welfare contributions

from at least 1977 through the end of the audit

period and beyond. These employees were told by

management that they would not be [en]titled to

benefit contributions until they had successfully

bid for regular employment and had been placed on

the regular seniority list. The employees fully

understood that.

My fourth finding of fact is that the term "parttime" in the local portion of the agreement was

interpreted by the company and the local union

representatives as referring to these employees

who had not been placed on the regular seniority

list and who, by reason of that fact, would not

be eligible for benefit contributions, regardless

of the length of time they had been employed by

the company.

Tr.8-B at 1005-06.

 The district court also elaborated on these

findings. The court observed that the employees

could not have been hired on a "short-term basis"

because "the employees in question were hired by

Kroger with the hope and the expectation that

they would become, each of them, full-time

regular employees when an opening occurred." Id.

at 1003-04. Although Kroger may have known that

there was nothing inevitable about its employees

becoming full-time regular employees, the court

explained, Kroger’s "hope was that the training

that would be given to these employees would be

utilized by the employees to complete their

probationary period successfully and to equip

themselves to become full-time employees when the

opportunity arose." Id. at 1004. Moreover, the

court noted, the employees in question could not

have been "employed from time to time," according

to the court, because that phrase referred to

"people who come and go, people whose employment
is interrupted, people who might be absent for

long periods of time," and did not refer to

people "who are on hand continuously to work

part-time as needed." Id. at 1005. In the

district court’s view, the evidence showed that

the employees in question were available, and

were considered to be available by Kroger, "on a

continuous basis to work part-time as needed

during the peaks and valleys" of Kroger’s Atlanta

operation. Id. "These employees," continued the

court, "were just as continuous as the peaks and

valleys were." Id. The district court further

explained that the content of the employee

handbooks Kroger had provided to its new hires,

as well as the manner in which the employees had

been trained and nurtured, demonstrated that the

employees in question "were by no means regarded

as people who were likely to be on hand for only

a short period of time." Id. at 1004. To the

contrary, the court explained, "it was expected

that in the normal course, [these employees]

would work for a long period of time, both as

what was referred to as part-timers, and then

eventually as people who achieved regular

employment and got on the regular seniority

list." Id.

2.

 The district court later issued a written

decision memorializing its findings of fact and

addressing the issue of liability. The district

court explained that the starting point for its

analysis was to consider "whether the evidence

show[ed] the Atlanta warehouse employees in

question were treated as ’casual’ by the company

and the union as that term is used in the [CBA]."

R.197 at 2. According to the district court, the

efforts of the parties to prove that the term

"part-time" in the Local Supplement either was or

was not synonymous with "casual" had proved to be

"largely unpersuasive." Id. In the district

court’s view, "[t]he union and company witnesses

[had] attempted reenactments that are contrary to

the way they acted at the time." Id. at 3./1

Moreover, the district court concluded, "[t]he

fact is that the local union and company

representatives acted according to their own

lights, with little or no regard to whether their

mutual understanding of whom would be paid fringe

benefits comported with the terms of the master

agreement." Id. at 2. Indeed, the court found

that "[i]f the matter had been left to the local

union representatives, no question of

contributions for these employees would ever have

arisen." Id. at 2-3.

 In the end, the court concluded, its third and

fourth findings of fact manifested "’local’

understandings" that "cannot prevail against the
definition of ’probationary’ employees" contained

in the Master Agreement. Id. at 5. Because the

employees were not casual, the district court

held that they necessarily were probationary. The

employees in question, the district court

concluded, were "regular employees who worked a

shorter week," or, in any event, were not

"casual" employees as defined by the Master

Agreement. Id. at 5-6. Thus, because the

employees were probationary, the court held that

Kroger was required to make contributions to the

Fund for the employees in question. 

 Based on its holding that Kroger should have

made pension contributions for the employees in

question, the district court awarded damages to

the Fund totaling $446,946.07. The district court

also awarded attorneys’ fees, costs, and double

interest to the Fund as provided by 29 U.S.C.

sec. 1132(g)(2). According to the district court,

Kroger did not contest the amount of attorneys’

fees and costs, so the court awarded the amount

requested by the Fund.

II

DISCUSSION

A.

 We review de novo a district court’s

interpretation of a contract. See Moriarty v.

Svec, 164 F.3d 323, 330 (7th Cir. 1998). When a

contract is unambiguous, the court may declare

its meaning as a matter of law. See Kroger I, 73

F.3d at 732. But when a contract is ambiguous,

questions of interpretation are to be resolved by

the trier of fact. See id.; Jos. Schlitz Brewing

Co. v. Milwaukee Brewery Workers’ Pension Plan, 3

F.3d 994, 999 (7th Cir. 1993). We review de novo

a district court’s determination of the meaning

of an ambiguous contract term, see WH Smith Hotel

Servs., Inc. v. Wendy’s Int’l, Inc., 25 F.3d 422,

428 (7th Cir. 1994); LaSalle Nat’l Bank v.

Service Merchandise Co., 827 F.2d 74, 78 (7th

Cir. 1987), as well as the court’s factual

findings following a bench trial, see Fed. R.

Civ. P. 52(a); Brunswick Leasing Corp. v.

Wisconsin Central, Ltd., 136 F.3d 521, 525 (7th

Cir. 1998).

 Thus, in this case Kroger has the "difficult,

though not insurmountable" burden of showing that

the district court’s factual findings are clearly

erroneous. Brunswick, 136 F.3d at 526. "A finding

is ’clearly erroneous’ when although there is

evidence to support it, the reviewing court on

the entire evidence is left with a definite and

firm conviction that a mistake has been

committed." United States v. United States Gypsum

Co., 333 U.S. 364, 395 (1948). "Where there are

two permissible views of the evidence, the
factfinder’s choice between them cannot be

clearly erroneous." Anderson v. Bessemer City,

470 U.S. 564, 574 (1985). If the district court’s

account of the facts is plausible in light of the

record viewed in its entirety, we may not reverse

that decision even if we may have decided the

case differently. See id. at 573-74 (noting that

if there are two possible understandings of the

evidence, the factfinder’s conclusion cannot be

clearly erroneous); Salus v. GTE Directories

Serv. Corp., 104 F.3d 131, 135-36 (7th Cir. 1997)

(applying these principles in an ERISA case).

Furthermore, any reasonable doubts we may harbor

should be resolved in favor of the district

court’s ruling "in light of its greater immersion

in the case." Cook v. City of Chicago, 192 F.3d

693, 697 (7th Cir. 1999).

B.

1.

 The statutory basis for the Fund’s claim against

Kroger is sec. 515 of ERISA, which provides: 

Every employer who is obligated to make

contributions to a multiemployer plan under the

terms of the plan or under the terms of a

collectively bargained agreement shall, to the

extent not inconsistent with law, make such

contributions in accordance with the terms and

conditions of such plan or such agreement.

29 U.S.C. sec. 1145. This section entitles

pension funds to enforce the terms of agreements

when those terms are unambiguous. See Central

States, Southeast & Southwest Areas Pension Fund

v. Hartlage Truck Serv., Inc., 991 F.2d 1357,

1361 (7th Cir. 1993); see also Central States,

Southeast & Southwest Areas Pension Fund v.

Gerber Truck Serv., Inc., 870 F.2d 1148, 1149

(7th Cir. 1989) (en banc) (stating that sec. 515

allows pension funds to "enforce the writings

according to their terms"). Because pension funds

are entitled to rely on the terms of a CBA, a

fund’s reliance upon those terms "may not be

thwarted by oral understandings between the

employer and the union," Kroger I, 73 F.3d at 731

(citing Central States, Southeast & Southwest

Areas Pension Fund v. Joe McClelland, Inc., 23

F.3d 1256, 1257-58 (7th Cir. 1994)), or by

written side agreements between the employer and

the union that have not been disclosed to the

fund, see Central States, Southeast & Southwest

Areas Pension Fund v. Transport, Inc., 183 F.3d

623, 628 (7th Cir. 1999), or "by defenses that

may defeat enforcement of the CBA between the

employer and the union," Kroger I, 73 F.3d at 731

(citing Gerber Truck, 870 F.2d at 1153). 

 Federal common law rules of contract
interpretation apply when we consider a contract

in the context of an ERISA claim. See Kroger I,

73 F.3d at 731. The written word will prevail

over the subjective understandings of the

contracting parties unless the written agreement

is truly ambiguous. See Pabst Brewing Co. v.

Corrao, 161 F.3d 434, 442 (7th Cir. 1998); Gerber

Truck, 870 F.2d at 1151-53. In our case, we have

determined that the term part-time is ambiguous.

When a court is interpreting an ambiguous term,

the task of the court is to determine what "the

contracting parties . . . intended the clause to

mean." In re Teamsters Indus. Employees Welfare

Fund, 989 F.2d 132, 136 (3d Cir. 1993). To

determine what the contracting parties intended,

the court may look at extrinsic evidence to

determine the meaning the contracting parties

attached to the ambiguous term. See Moriarty, 164

F.3d at 331 (citing FDIC v. W.R. Grace & Co., 877

F.2d 614, 620-21 (7th Cir. 1989)); see also

Rosetto v. Pabst Brewing Co., 217 F.3d 539, 543

(7th Cir. 2000) (stating that, when an ambiguity

"is apparent just from reading the contract,"

"evidence is admissible to cure" that ambiguity).

2.

 During the bench trial, Kroger and the Fund

presented the district court with the testimony

of over 20 witnesses and with over 300 exhibits

in their efforts to demonstrate that the parties

to the CBA intended "part-time" to be either

synonymous or not synonymous with "casual." Much

of the evidence presented was conflicting. On

appeal, Kroger and the Fund have devoted the

majority of their arguments to the question of

whether the district court correctly resolved the

ambiguous meaning of "part-time" as that term was

used in the CBA. We shall begin our analysis,

however, by examining one of the unambiguous

terms of the CBA--the term "casual employee."

 Section 2.3 of the Master Agreement states that

casual employees, who are hired on a "short term

basis," may be "employed from time to time" at

Kroger facilities with a history of hiring such

employees. CBA sec. 2.3. The parties do not claim

that the meaning of "casual," as it is used here,

is ambiguous; nor have they questioned the

meanings of "short-term basis" or "from time to

time." Relying on the definition of a casual

employee in sec. 2.3 of the CBA, the district

court explained that it understood that term to

refer to those employees that Kroger intended,

when it hired them, to work for a short period of

time. Casual employees, the court reasoned, would

not be employees Kroger expected "in the normal

course" to work "for a long period of time."

Tr.8-B at 1004. The court also explained that
casual employees would be people "who come and

go, people whose employment is interrupted,

people who might be absent for long periods of

time," rather than people "who are on hand

continuously to work part-time as needed." Id. at

1005. We agree with the district court’s

assessment of the meaning of "casual

employee."/2

 The CBA’s definition of "casual employees" is

binding on Kroger. See Joe McClelland, 23 F.3d at

1257-58; Gerber Truck, 870 F.2d at 1149. Thus, in

our previous decision in this case, we observed

that "it is only if the employees at issue are

truly casual, and not probationary, as those

terms were understood by the parties to the CBA,

that Kroger’s reclassification of the Atlanta

employees (and thus its failure to make

contributions on their behalf) is permissible."

Kroger I, 73 F.3d at 733. In applying the CBA’s

definition of "casual employee" to the facts of

this case, the district court found in its first

finding of fact that the employees in question

were not casuals. Specifically, the district

court found that these employees were not hired

on a short-term basis because they were hired

"with the hope and the expectation that they

would become, each of them, full-time regular

employees when an opening occurred." Tr.8-B at

1003-04. Indeed, the court found, Kroger expected

these employees, regardless of whether they

stayed with Kroger, to "work for a long period of

time, both as what was referred to as parttimers, and then eventually as people who

achieved regular employment and got on the

regular seniority list." Id. at 1004.

Furthermore, the district court found that the

employees in question were not employed "from

time to time" because they were, in fact, "as

continuous as the peaks and valleys" of Kroger’s

operation. Id. at 1005. 

 Kroger submits that the district court ignored

the evidence of record and the parties’ intent by

concluding that the new hires were not "casuals."

Instead, Kroger asserts, the new hires were hired

on a "short-term basis" and were employed "from

time to time," thus meeting the definition of

"casuals" given in the Master Agreement. Kroger

further submits that the employees in question

must have been casuals because their employment

was marked by characteristics of "casual"

employment. They were not given set schedules;

they had no weekly salary guarantees; and they

served as fill-ins for Kroger’s regular

employees. After the new employees worked their

first 30 days at Kroger, their status did not

change, and most of the new hires never became

regular employees. In fact, Kroger submits, 85

percent of them worked less than 12 weeks.

Additionally, Kroger explains, until the
employees obtained a bid position, they were not

entitled to job benefits like progressive

discipline, jury duty, and holidays--all benefits

regular employees enjoyed. Therefore, Kroger

submits, the new hires were "effectively" casual

employees. Appellant’s Br. at 25. Finally, Kroger

takes issue with the district court’s conclusion

that Kroger expected every new hire to become a

regular employee. This could not possibly be the

case, Kroger submits, because it knew that only a

small fraction would stay with the company more

than a few weeks.

 There is sufficient evidence in the record,

however, to support the district court’s

conclusion that these employees were not "hired

on a short term basis" or "employed from time to

time." Thus, we cannot say that the district

court’s first finding of fact is clear error. The

district court stated, in particular, that the

employee handbooks and Kroger’s "training and

nurture" of its new hires persuaded the court

that the employees in question were not casuals.

Tr.8-B at 1004. As an example, one of the

employee handbooks used by Kroger welcomed them

to the "Kroger team" and instructed them to use

the handbook "as a training tool and guide during

your first several weeks at Kroger." R.209, Ex.92

at 971. The district court also found that,

regardless of whether the employees stayed with

Kroger for a long time, Kroger hired these

employees with the intention that they would

remain with the company and eventually become

"regular" employees. Even though Kroger had a

high turnover rate at the Atlanta facility, there

was also evidence that eventually a new hire that

stayed with the company either had to bid for a

permanent position or, failing that, was fired.

Here, we agree with the Fund that "[t]he ability

to bid on permanent jobs is entirely at odds with

the concept of casual employment which by

contract definition, is short and indefinite,"

Appellee’s Br. at 18, especially because there

was evidence that it took six to nine months to

get to the top of the "part-time" seniority list.

3.

 Kroger nevertheless argues that the district

court clearly erred because the court failed to

resolve--or worse, incorrectly resolved--the

ambiguity in the meaning of the term "part-time"

as used in the CBA. According to Kroger, had the

district court resolved the ambiguity correctly,

it would have concluded, based on the record,

that "the parties intended [’part-time’] to have

a temporal meaning only in the Master Agreement,

but to denote a status of employee, ’parttimers,’ the employees at issue, in the Local

Supplement." Appellant’s Br. at 16. Furthermore,
Kroger submits, the district court’s third and

fourth findings of fact warranted judgment for

Kroger because those findings of fact evidenced

the understanding of the parties to the CBA that

"part-time," as used in the Local Supplement,

referred to casual employees, who were not

entitled to pension contributions. The district

court’s ruling, Kroger maintains, runs contrary

to the meaning of "part-time" that Kroger and the

Union, the parties to the CBA, intended when they

contracted and have accepted since at least 1977.

 Kroger correctly points out that, in general,

the practical interpretation the parties to a

contract have given that contract is strong

evidence of their intended meaning for an

ambiguous term./3 Nonetheless, regardless of the

terminology employed with respect to the "parttime" employees in Atlanta, Kroger and the Union

simply could not have redefined "casual" in

derogation of the clear meaning of that term

provided in the CBA. Just as employers may not

rely on oral or written side agreements when

those agreements contravene the terms of the

governing agreement, see Transport, 183 F.3d at

628; Joe McClelland, 23 F.3d at 1257-58, Kroger

may not rely on a practice--even one accepted by

the Union--that contravenes the express and

unambiguous terms of the CBA. Whatever meaning

Kroger and the Union may have ascribed to "parttime" in the Local Supplement, Kroger’s practice

of treating the employees in question as

"casuals" for pension contribution purposes when,

in fact, those employees were not hired on a

short-term basis or employed from time to time

cannot thwart the unambiguous definition of

casual employees contained in the CBA.

 The district court acknowledged that its task on

remand was a difficult one given the fact that

the CBA, "as interpreted by the local

representatives of the union and by the company,

is marked by an inconsistent view of casual and

part-time as between the two portions of the

agreement." Tr.8-B at 1007. Nevertheless, because

the employees were not truly casuals, they had to

have been probationary employees, the only other

type of new employee countenanced by the CBA. And

because they were probationary employees, and not

casuals, Kroger should have made the disputed

pension contributions for them.

C.

 Kroger also submits that the Fund should be

estopped from claiming that pension contributions

are owed for the Atlanta workers. According to

Kroger, it can establish the elements of estoppel

because it reasonably relied, to its detriment,
on a knowing misrepresentation because the Fund

did not object to Kroger’s practice of deeming

all new hires as casuals. 

 Kroger argues that the Fund made knowing

misrepresentations to it in two ways. First,

Kroger claims, the Fund knowingly misrepresented

to it that the Fund did not object to the

company’s practice. According to Kroger, each

month it sent the Fund a report that showed the

gap between the employees’ original hire dates

and the dates Kroger began making contributions

for them. The Fund then sent Kroger a monthly

bill for fund contributions based on the

information provided by Kroger the previous

month. By "misrepresenting to Kroger that

Kroger’s payment and reporting was acceptable,"

Kroger argues, it was misled into thinking that

no pension contributions were required.

Appellant’s Br. at 42. Secondly, Kroger argues

that, by accepting Kroger’s monthly

contributions, the Fund knowingly misrepresented

to Kroger that the Fund had read and had approved

the CBA. Had the Fund read the CBA, according to

Kroger, the Fund would have known that the CBA

was ambiguous (as it did when it finally

conducted its audit) and would have asked Kroger

about the ambiguity.

 Moreover, Kroger submits that it reasonably

relied on the Fund’s misrepresentations.

Essentially, Kroger explains, the Fund’s inaction

"lulled Kroger into a false sense of security

regarding its use of part-timers and its

contribution obligations." Appellant’s Br. at 44.

Finally, Kroger maintains that it relied to its

detriment on the Fund’s misrepresentations.

According to Kroger, had it not relied on the

misrepresentations, Kroger would not have

incurred the expense and exposure caused by the

present litigation. 

 The district court held that our decision in

Coker v. Trans World Airlines, Inc., 165 F.3d 579

(7th Cir. 1999), precluded relief on an estoppel

theory in this case because, under Coker,

estoppel requires a "knowing misrepresentation."

R.197 at 4 (citing Coker, 165 F.3d at 585-86).

According to the district court, the Fund had not

made a knowing misrepresentation because such a

misrepresentation requires an intent to mislead.

In this case, the district court explained,

"nothing like that occurred." Id.

 This circuit has not decided whether estoppel

claims should be available in ERISA actions

involving multi-employer, funded plans. See,

e.g., Shields v. Local 705, Int’l Bhd. of

Teamsters Pension Plan, 188 F.3d 895, 899-900

(7th Cir. 1999) (declining to decide whether
estoppel could ever apply to such a plan). Even

assuming that estoppel could be available in this

context, however, we agree with the district

court that Kroger cannot make out the elements of

estoppel, although we reach this conclusion for

reasons different from the district court.

Kroger’s estoppel argument is foreclosed because

Kroger’s reliance on any misrepresentation made

by the Fund could not have been reasonable.

"Reliance on the misrepresentation is reasonable

only if the party asserting estoppel does not or

should not know the truth." Bakery &

Confectionary Union & Indus. Int’l Pension Fund

v. Ralph’s Grocery Co., 118 F.3d 1018, 1027 (4th

Cir. 1997). Here, Kroger, the party asserting

estoppel, obviously knew of its practice of

designating the employees in question as casuals

and, therefore, it was in a better position than

the Fund to know the truth that its practice did

not comport with the CBA. Thus, we cannot accept

Kroger’s estoppel argument.

D.

 Finally, we must address the question of

attorneys’ fees and costs. The district court

correctly awarded the Fund its attorneys’ fees

and costs for its efforts in the district court

to enforce the contribution agreement with

Kroger. See 29 U.S.C. sec. 1132(g)(2). Likewise,

the Fund is entitled under sec. 1132(g)(2) to

recover its reasonable attorneys’ fees and costs

in this appeal. See, e.g., Central States,

Southeast & Southwest Areas Pension Fund v.

Wintz, 155 F.3d 868, 876 (7th Cir. 1998); Joe

McClelland, 23 F.3d at 1259. 

Conclusion

 For the foregoing reasons, we affirm the

judgment of the district court.

AFFIRMED

/1 As an example, the district court noted that one

of Kroger’s witnesses had testified that the

employees at the Atlanta facility were commonly

referred to as "part-time casual." R.197 at 3.

This testimony, in the district court’s

estimation, was not credible; according to the

court, the employees "would have been described

as ’part-time,’ or ’casual,’ but not both." Id.

/2 We note that the district court’s understanding

of the term "casual employee" is not only

consistent with the terms of the CBA, it also

comports with the dictionary definition of
"casual employment." Black’s Law Dictionary

defines "casual employment" as: 

Employment at uncertain or irregular times.

Employment for short time and limited and

temporary purpose. Occasional, irregular or

incidental employment. Such employee does not

normally receive seniority rights nor does he

normally receive fringe benefits.

Black’s Law Dictionary 198 (5th ed. 1979); see

also Central States, Southeast & Southwest Areas

Pension Fund v. Independent Fruit & Produce Co.,

919 F.2d 1343, 1350 (8th Cir. 1990) (citing

Black’s Law Dictionary to define "casual

employment" in a CBA lacking its own definition

of the term).

/3 See Old Colony Trust Co. v. City of Omaha, 230

U.S. 100, 118 (1913) ("Generally speaking, the

practical interpretation of a contract by the

parties to it for any considerable period of time

before it comes to be the subject of controversy

is deemed of great, if not controlling,

influence."); Moriarty, 164 F.3d at 332 (stating

that extrinsic evidence of the parties’

understanding of an ambiguous term is "highly

relevant"); In re Teamsters, 989 F.2d at 137

(stating that evidence of a course of conduct

over a substantial period of time is

"particularly compelling" on the question of the

parties’ intent).