worked pursuant to the terms and rates established. ERISA and the CBA provide
that employers who fail to submit contributions are responsible for the payment of
such amounts together with liquidated damages in an amount of up to 20% interest
at the prime rate plus 2%, reasonable attorney fees, and costs.

Section 12(B) of the CBA states in part:

The Employer recognizes that each Board of Trustees has the
sole power to construe the provisions of the respective Trust
Agreements, the respective employee benefit plans, and each
Fund's rules and regulations, if any, and that all constructions,
interpretations, and determinations made by the respective
Trustees for their respective funds shall be final and binding
on all parties.

Appendix I(B)of the CBA, entitled "Certain Rules Relating to Employer
Contributions," provides:

Any covered Employer who hires an individual who
substantially controls or has the power to substantially control
the Employer, whether by stock ownership, relationship,
marriage or otherwise, shall contribute to the Funds on behalf
of said individual for each and every hour worked or paid, but
in no case less than a minimum of 1,952 hours on an annual
basis, at the current Local No. 1 Collective Bargaining Rate.

OWS is engaged in the structural steel business. The corporation is

owned by Steve Ornoff. Gary Ornoff, the brother of Steve Ornoff, is hired as a



IT IS THEREFORE ORDERED that plaintiffs' motion for summary
judgment [27] is denied and defendant's motion for summary judgment [34] is
granted. The Clerk of the Court is directed to enter judgment in favor of defendant

and against plaintiffs dismissing plaintiffs' cause of action with prejudice.

ENTER:

Uy ly boat

UNITED STATES DISTRICT JUDGE

DATED: MAY 14, 2013

-10-


minimum. In 2010, the minimum was temporarily reduced to 1,864. Gary
worked 651 hours less than the minimum. In 2011, his hours were 538 less than
the 1,952 minimum.
In 2009, the Fund filed a suit in this court entitled Structural Iron
Workers Local Union No. 1 Pension Trust Fund v. Ornoff's Welding Serv., Inc.,
No. 09 C 2332 (N.D. Ill.). OWS is a named defendant in the case. In that case, it
was alleged that OWS failed to make required fringe benefit contributions. The
action was based on a Fund audit for the period from February 1, 2005 through
December 31, 2008. OWS was allegedly liable in the total amount of $34,641.41.
That case was settled with OWS agreeing to certain payments. The recitals
provide, in part, as follows:
WHEREAS, Ornoff has requested that the Trust Funds
reconsider the determinations made in the audit concerning
the "1952 Rule" to Gary Ornoff and whether fringe benefits
must be paid for payment of shop-medical wages to covered
employees who are not performing covered work;
WHEREAS, the Trust Funds agree that, during the
audit period of February 1, 2005 through December 31, 2008,
the 1952 Rule was not applicable to Gary Ornoff, based on the

facts and circumstances demonstrated by Ornoff concerning
Gary Ornoff's inability to substantially control [OWS];



foreman. He has no financial interest in the corporation and has never held any
corporate position. Gary Ornoff has no OWS bank account or other business
authority. There are no administrative employees. Steve Ornoff obtains the work
and informs Gary what is to be done at the job sites. Gary is not involved in
bidding for or soliciting work. His activity is foreman at the job sites.

Depending on the work available, OWS employs five or six iron
workers. Gary Ornoff has worked as an employee of OWS since 1994, after
previously working as an iron worker in Oklahoma. He started with OWS as a
journeyman and later became job foreman.

Steve Ornoff visits the work sites and instructs Gary Ornoff. Gary
assigns iron workers to specific tasks. Steve and Gary discuss how the field work
should proceed. When Steve Ornoff is not present, Gary is in charge of the job.

Gary Omoff testified that the company has only a few long-time
workers. He does not evaluate their work and has had no occasion to discipline
any employee.

The wage scale for a Union foreman is $42.75 an hour. Gary Ornoff is
paid $46.00 as foreman for OWS. His compensation and hours of work depend on

the steel work jobs of OWS. In 2009, he worked 844 hours less than the 1,952



1994); Ossey v. ABT Elec., Inc., 1999 WL 202911 *8 (N.D. Ill. March 31, 1999);
Laborers' Pension Fund v. Morack Refractory Constr., Inc., 1993 WL 181752
*4 (NLD. Ill. May 26, 1993). Plaintiffs argue that the application of the CBA
requires contract interpretation and that the defendant has agreed to be bound by
the Fund's interpretation of the 1,952 rule. However, there is no need for an
interpretation or construction of the contract terms. The question is rather whether
the facts show that Gary Ornoff did substantially control, or had the power to
substantially control, OWS. A family relationship with the owner of the
corporation is certainly a fact to be considered, but it is not enough, by itself, to
show power or substantial control. All of the proven activity of Gary Ornoff
indicates that he was performing, and compensated for, duties typical of an iron
worker field foreman--not the activities of an individual with power to
substantially control the defendant corporation.

Plaintiffs are not legally bound by their settlement of the 2009 litigation,
but their decision to renew the same dispute without any change of facts indicates
that their earlier fact determinations and settlement recitals were correct and
supports the decision reached in this case. Defendant is entitled to summary

judgment.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

STRUCTURAL IRON WORKERS
LOCAL UNION NO. 1 PENSION
TRUST FUND, and JOHN GARDINER,
Administrator of the Fund Disbursement
Office,

Plaintiffs,
No. 12 C 140

Vv.

OWS ENT,, INC., an Illinois
corporation,

ee NS SS SS SS Sw

Defendant.

OPINION AND ORDER

Plaintiffs Structural Iron Workers Local Union No. 1 Pension Trust Fund
(the "Fund") and John Gardiner ("Gardiner"), administrator of the Fund, brought
this action against defendant OWS Ent., Inc. ("OWS"), an Illinois corporation, for
breach of contract to recover unpaid welfare contributions, liquidated damages,
interest, attorney fees, audit fees, and costs allegedly owed pursuant to the terms of
a collective bargaining agreement ("CBA"). This action arises under § 502 of the

Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132,



Plaintiffs state that the settlement agreement is not binding in this case
and also call attention to waiver language in the agreement which is
as follows:

Under the terms of this Agreement, the Trust Funds
conditionally waive their right to certain contributions,

liquidated damages, and interest related to payments by

[OWS] to its employees for Shop-Medical hours. The Funds's

waiver is only in connection with this Agreement and is not

intended to create any precedent or pattern of conduct with

regards to other such payments made by [OWS] or any other

employer in the future.

There is no showing that Gary Ornoff's position or duties with OWS
have changed since the 2005-08 audit was conducted.

In his affidavit, plaintiff John Gardiner states that, because Gary Ornoff
works for his brother, the payments sought are required. Gardiner states that the
Fund interprets the Rule to require contributions "on behalf of an employee who is
a family member." Pl. Exh. 7, ¢ 26. See also Def. Exh. 5 at 12-13, 22-23 (Satalic
Deposition).

As a general rule, parties to a labor contract are bound by the plain and

ordinary meaning of the terms in their agreement. See Ill. Conference of

Teamsters & Emp'rs Welfare Fund v. Mrowicki, 44 F.3d 451, 458 (7th Cir.



court--that there is an absence of evidence to support the
nonmoving party's case." Celotex, 477 U.S. at 325, 106 S. Ct.
2548. Once the moving party satisfies this burden, the
nonmovant must "set forth specific facts showing that there is
a genuine issue for trial." Fed. R. Civ. P. 56(e). "The
nonmovant must do more, however, than demonstrate some
factual disagreement between the parties; the issue must be
‘material." Logan, 96 F.3d at 978. "Irrelevant or unnecessary
facts do not preclude summary judgment even when they are
in dispute." Jd. (citation omitted). In determining whether the
nonmovant has identified a "material" issue of fact for trial,
we are guided by the applicable substantive law; "[o]nly
disputes that could affect the outcome of the suit under
governing law will properly preclude the entry of summary
judgment." McGinn v. Burlington Northern R.R. Co.,

102 F.3d 295, 298 (7th Cir. 1996) (citation omitted).
Furthermore, a factual dispute is "genuine" for summary
judgment purposes only when there is "sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S. Ct. 2505 (1986). Hence, a "metaphysical doubt"
regarding the existence of a genuine fact issue is not enough
to stave off summary judgment, and "the nonmovant fails to
demonstrate a genuine issue for trial 'where the record taken
as a whole could not lead a rational trier of fact to find for the
non-moving party ....'" Logan, 96 F.3d at 978 (quoting
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587, 106 S. Ct. 1348 (1986)).

Outlaw, 259 F.3d at 837.
The CBA obligates OWS to make monthly reports of hours worked by

covered employees and to pay contributions to the Trust Funds for each hour



establish any essential element for which he or it will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Montgomery v. Am.
Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). The movant need not provide
affidavits or deposition testimony showing the nonexistence of such essential
elements. Celotex, 477 U.S. at 324; Freundt v. Allied Tube & Conduit Corp.,
2007 WL 4219417 *2 (N.D. Ill. Nov. 29, 2007); O'Brien v. Encotech Constr.,
2004 WL 609798 *1 (N.D. Ill. March 23, 2004). Also, it is not sufficient to show
evidence of purportedly disputed facts if those facts are not plausible in light of
the entire record. See Lorillard Tobacco Co. v. A & E Oil, Inc., 503 F.3d 588,
594-95 (7th Cir. 2007); Yasak v. Ret. Bd. of Policemen's Annuity & Benefit
Fund of Chicago, 357 F.3d 677, 679 (7th Cir. 2004); Lampley v. Mitcheff, 2010
WL 4362826 *6 (N.D. Ind. Oct. 27, 2010). As the Seventh Circuit has
summarized:
The party moving for summary judgment carries the

initial burden of production to identify "those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

material fact." Logan v. Commercial Union Ins. Co., 96 F.3d

971, 978 (7th Cir. 1996) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S. Ct. 2548 (1986) (citation and

internal quotation omitted)). The moving party may discharge
this burden by "'showing'--that is, pointing out to the district



and § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185. The court
has jurisdiction pursuant to 29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 1331.

The case is now before the court on cross-motions for summary
judgment. The issue is whether welfare contributions are owed for the brother of
the owner of defendant for hours which exceed his actual hours of work.
Contributions were paid for his actual hours of work. A provision in the CBA
requires payment for a fixed minimum number of hours for any hired individual
who "substantially controls or has the power to substantially control" OWS. The
parties contend that the essential facts are not in dispute.

On a motion for summary judgment, the entire record is considered with
all reasonable inferences drawn in favor of the nonmovant and all factual disputes
resolved in favor of the nonmovant. Crawford v. Metro. Gov't of Nashville &
Davidson Cnty., Tenn., 555 U.S. 271, 274 n.1 (2009); Malen v. MTD Prods.,
Inc., 628 F.3d 296, 303 (7th Cir. 2010); Stokes v. Bd. of Educ. of City of
Chicago, 599 F.3d 617, 619 (7th Cir. 2010). The burden of establishing a lack of
any genuine issue of material fact rests on the movant. Ponsetti v. GE Pension
Plan, 614 F.3d 684, 691 (7th Cir. 2010); Outlaw v. Newkirk, 259 F.3d 833, 837

(7th Cir. 2001). The nonmovant, however, must make a showing sufficient to