In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1011

WILLIAM E. DUGAN, et al.,

Plaintiffs-Appellants,

v.

R.J. CORMAN RAILROAD COMPANY, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 4114—Charles P. Kocoras, Chief Judge.

____________

ARGUED JUNE 2, 2003—SEPTEMBER 22, 2003

____________

Before POSNER, EASTERBROOK, and WILLIAMS, Circuit

Judges.

POSNER, Circuit Judge. The trustees of multiemployer

welfare and pension funds have sued Corman under ERISA

for failing to make contributions that the trustees claim

Corman was required to make by collective bargaining

agreements that it had made with the union effective in

1992, 1993, and 1996, respectively. The district judge ruled

for Corman after a trial based on a stipulated record, and

the trustees appeal.

Corman provides emergency services when a railroad (or

an industrial facility that has its own rail facilities) suffers
2 No. 03-1011

a derailment. The services include righting or disposing

of derailed cars by means of heavy equipment owned by

Corman, repairing damaged sections of track, and cleaning

up hazardous spills from derailed cars. Between derailments

there is work “in the shop,” that is, work at the facilities in

which Corman stores and maintains the equipment that

it uses to clean up derailments and from which its employees sally forth when a derailment occurs in the vicinity

of the facility to which they are assigned. One of these

facilities is in Gary, Indiana—or rather was. The last collective bargaining agreement between Corman and the union

concerning workers at the Gary facility, the 1996 agreement, expired at the end of 1999. Negotiations for a new

agreement collapsed the following May, when Corman

withdrew recognition from the union. The union struck in

June and Corman closed the facility at the end of that

month.

The dispute giving rise to this suit concerns 25 workers

employed at various times between 1992 and 2000 at the

Gary facility who Corman contends were “casual employees” not entitled by the collective bargaining agreements

to pension and welfare benefits but who the trustees

contend were regular employees and thus entitled to the

benefits. (It appears that on average the Gary facility was

staffed by between four and eight employees conceded to be

regular employees plus one or two of the so-called casual

employees.) Two of the 25 worked after the last agreement

expired; the contributions due on behalf of these workers present a distinct issue discussed later in this opinion.

The 1996 collective bargaining agreement defined “casual employees” as “employees hired for a specific customer

project. Nothing in this section is to prevent casual employees from future employment on customer projects.

Furthermore, no casual employee will be employed if such
No. 03-1011 3

employment causes a reduction or prevents an increase

in hours of any present full-time and/or regular part-time

employee. Also, no casual employees shall be employed

as a means of preventing an increase in the number of

full-time and/or regular part-time employees.” The 1992

agreement had contained a similar definition but with the

addition that “casual employees’ hours of employment

shall not exceed 60 hours in a calendar month and/or a

customer project, whichever is greater.” Because Corman

had difficulty finding workers willing to accept emergency

calls for temporary work cleaning up derailments when the

income from that work was so limited, the hour restriction was omitted from the subsequent agreements.

So far as the scope of our appellate review is concerned,

we note that a trial on a stipulated paper record is equivalent to a conventional trial on (largely) oral evidence. Hess

v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir.

2001). Since the district judge based his interpretation of the

1996 agreement not just on its language but also on the

language that we just quoted from the 1992 agreement and

on the evidence we mentioned that was offered to explain

why that language was changed, the standard of appellate

review applicable to the interpretation might seem to be that

of clear error, rather than the de novo (plenary) standard.

Cook Inc. v. Boston Scientific Corp., 333 F.3d 737, 742 (7th Cir.

2003). But that is on the assumption that the judge was right

to consider evidence “extrinsic” to the 1996 agreement. He

was not if that agreement was clear as written, e.g., Geier v.

Medtronic, Inc., 99 F.3d 238, 244 (7th Cir. 1996); RJE Corp. v.

Northville Industries Corp., 329 F.3d 310, 314 (2d Cir. 2003)

(per curiam)—a principle fully applicable to collective

bargaining agreements. Bidlack v. Wheelabrator Corp., 993

F.2d 603, 608 (7th Cir. 1993) (en banc); Mazzei v. Rock-NAround Trucking, Inc., 246 F.3d 956, 960 (7th Cir. 2001); Pierce

County Hotel Employees & Restaurant Employees Health Trust
4 No. 03-1011

v. Elks Lodge, B.P.O.E. No. 1450, 827 F.2d 1324, 1327 (9th Cir.

1987). We think that the agreement was clear as written and

that therefore the judge should not have looked outside it,

and thus that our review should be plenary because the

interpretation of a contract is treated as an issue of law

when extrinsic evidence is not used in the interpretation.

E.g., Alexander v. City of Evansville, 120 F.3d 723, 727 (7th

Cir. 1997); Ryan v. Chromalloy American Corp., 877 F.2d 598,

602 (7th Cir. 1989); RJE Corp. v. Northville Industries Corp.,

supra, 329 F.3d at 314.

A further wrinkle is that the judge thought that only the

1996 agreement was at issue, but this is incorrect because

some of the employees in question worked under the earlier agreements. That makes no difference to the appeal; the

only difference among the agreements, so far as the definition of “casual employees” is concerned—the 60-hour

restriction found in the first and dropped in the second and

third agreements—is, as we’ll see, immaterial.

Corman argues that as long as a worker was initially hired

to work on a specific project, he could be retained to work

between projects (and thus in the shop) without losing the

status of a casual employee. We disagree. A “casual employee,” in normal parlance as in the language of the

agreements, is one hired for a specific project or other

limited purpose, so that his employment ceases when he

finishes his work on the task that he was hired to do. See

Central States, Southeast & Southwest Areas Pension Fund v.

Kroger Co., 226 F.3d 903, 912 n. 2 (7th Cir. 2000); Central

States, Southeast & Southwest Areas Pension Fund v. Independent Fruit & Produce Co., 919 F.2d 1343, 1350 (8th Cir. 1990).

Employers faced with unpredictable surges in

demand—which is a good description of a company whose

business is cleaning up derailments—need a flexible

workforce, and one way of imparting flexibility is to have
No. 03-1011 5

a reserve pool of workers who go off the payroll when

the surge recedes. Such workers are “casual employees.”

Their leaving the payroll when the specific job for which

they’ve been hired ends is implicit in the definition of

them in the collective bargaining agreements as employees

“hired for a specific customer project.” Corman acknowledges that “specific customer project” means a specific

derailment. The sentence that follows the definition of

casual employees states that they are not barred “from

future employment on customer projects” (emphasis added),

implying that they can’t be rehired to do storage and

maintenance or the other tasks that are performed between

derailments and that correspond to what firemen do

between fires; no more can they be hired for such work

initially.

The deletion of the 60-hour limit found in the 1992

collective bargaining agreement has no bearing on “casual

employees” who did not bump up against the limit

or did not work under that agreement and so were not

bound by the limit. Under the subsequent agreements a

casual employee who worked 80 hours in a two-week

period was still a casual employee—provided he spent

those 80 hours working only on derailments rather than

performing maintenance or other chores in the Gary shop.

At argument Corman’s lawyer contended that the only

limitation on casual employees in the later agreements is

that they may not take work away from regular employees.

That is not the only limitation. A casual employee loses

his status if he takes work away from the regular employees, yes—but he is not entitled to that status in the first

place unless hired to work on a specific customer project,

that is, a derailment, and he loses that status if, though

initially hired to work on a derailment, he is retained to

work in the shop after his work on the derailment is finished.
6 No. 03-1011

The question then is whether the 25 employees ever

worked in the shop. Information culled from payroll records indicates the number of hours that employees, whether regular or casual, who were assigned to the Gary facility

worked every week. The hours are classified as “Regular,”

“Wreck,” or “OT-Wreck” (“OT” standing for overtime).

“Regular” suggests work not tied to a specific derailment

(and thus not tied to a specific customer project, and thus

continuing in the shop between derailments), while

“Wreck” and “OT-Wreck” suggest work on a specific

derailment. An appendix to the collective bargaining

agreements states that the “Regular Shop rate shall be [for]

all hours worked in the shop.” This is further evidence that

“Regular” work is work done by regular employees; in

contrast, “Wreck” rates are for “customer service work.”

And the 25 employees whose status is in issue worked

approximately the same total hours, and with approximately the same proportion of regular to wreck hours, as the

regular staff of the Gary facility.

It is, we acknowledge, conceivable that much or for that

matter all work described as “Regular” was actually tied

to a specific derailment or a succession of derailments.

There is no evidence of the frequency of derailments or the

average length of time it takes to clean one up, and so we

don’t know whether derailments follow so hard upon

each another that a casual employee might be employed

for months on end on specific customer projects with

only nominal breaks in service (not showing up in the

company’s records) between projects and thus without

doing any “regular” work. That seems unlikely, however,

and at argument Corman’s lawyer conceded that the

“regular” work shown on the employee records was indeed work not tied to a specific customer project. We hesitate to hold parties to concessions that their lawyers

make in the heat of argument. But Corman’s trial brief
No. 03-1011 7

had said in like vein that “most of the casuals who did

work regularly and stayed with the company over an extended

period of time eventually were promoted to ‘regular’ positions with full CBA [collective bargaining agreement]

coverage” (emphasis added), which implies that the socalled casual employees did regular work before they were

reclassified as regular employees; and employees who do

regular work are regular employees.

Given that the 25 so-called casual employees were in fact

regulars, it is difficult to understand why their casual

status wasn’t forfeited by virtue of the limitation that

Corman itself emphasizes—that casual employees may not

substitute for regular ones. Maybe Corman couldn’t afford

to pay regular wages and fringes to additional workers,

but if so it should have renegotiated the collective bargaining agreement to permit it to hire additional regular workers on terms different from those of its core staff. Such twotier hiring is unexceptionable.

We have next to consider the trustees’ quest for contributions on behalf of the two of the 25 employees who worked

after the last collective bargaining agreement expired in

December 1999. The trustees argue that Corman extended

the collective bargaining agreement both by continuing to

make the contributions (on behalf of those employees

whom Corman recognized as regulars) that were required

by the agreement for seven months after it expired and by

signing reports of contributions to the funds that stated that

“the undersigned employer, if not already a signatory

hereby becomes a signatory party to the current applicable

Collective Bargaining Agreement.”

In a related case, R.J. Corman Derailment Services v. International Union of Operating Engineers, Local Union 150, AFLCIO, 335 F.3d 643 (7th Cir. 2003), the district court held that
8 No. 03-1011

a dispute between Corman and the union over wages was

subject to an arbitration provision in the expired agreement. We reversed on procedural grounds without deciding whether “Corman was continuing to abide by at least

the wage terms of the expired CBA because (a) it believed

that there was a new agreement between the parties, (b)

it believed that the old agreement had been extended, or

(c) because as a unilateral matter it was simply abiding by

the old terms in good faith while attempting to negotiate

a new agreement.” Id. at 648.

We reject both of the trustees’ arguments. But we do not

reject the second (the one based on the language that we

quoted from the contributions report) for the reason given

by Corman—that the language is “boilerplate.” In the

absence of fraud, mistake, unconscionability, or like defenses, a person is bound by all provisions in a contract,

including standard provisions colloquially described as

“boilerplate.” (We have no doubt that Corman enforces

boilerplate provisions in the contracts that it drafts.) There

is no “mere boilerplate” defense to a suit for breach of

contract (or a defense to a defense to such a suit), Operating

Engineers Local 139 Health Benefit Fund v. Gustafson Construction Corp., 258 F.3d 645, 650 (7th Cir. 2001); Adams

v. Merrill Lynch Pierce Fenner & Smith, 888 F.2d 696, 700-01

(10th Cir. 1989), any more than there is a “fine print” or

“I didn’t read it” defense. Paper Express, Ltd. v. Pfankuch

Maschinen, 972 F.2d 753, 757 (7th Cir. 1992); Northwestern

National Ins. Co. v. Donovan, 916 F.2d 372, 377-78 (7th Cir.

1990); Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d

1286, 1292 (7th Cir. 1989); Schell v. Ford Motor Co., 270 F.2d

384, 386 (1st Cir. 1959). Allowing such defenses would be

a throwback to the era of exaggerated concern with the

supposed one-sidedness of form or standard contracts

denigrated as “contracts of adhesion.” As we explained in

Northwestern National Ins. Co. v. Donovan, supra, 916 F.2d
No. 03-1011 9

at 377, “widespread judicial suspicion of the form contract—the dreaded ‘contract of adhesion,’ the contract that

is offered by the authoring party on a take it or leave it basis rather than being negotiated between the parties . . .

[—]has never crystallized . . . in a rule making such contracts unenforceable, on grounds of fraud or duress or

unconscionability or mistake or what have you, or even

presumptively unenforceable . . . . Although the vagueness

of the concept of unconscionability may seem to place

contracts of adhesion under a cloud, they are generally

upheld against attacks from that direction.” See also DeValk

Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 332-34

(7th Cir. 1987); Adams v. Merrill Lynch Pierce Fenner & Smith,

supra, 888 F.2d at 700-01.

What is true is that boilerplate will sometimes be irrelevant to the document in which it has been unthinkingly

inserted, e.g., Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996);

United States v. Lombardi, 5 F.3d 568, 572 n. 4 (1st Cir.

1993)—as in this case. The boilerplate that we quoted from

the report of contributions is meant for the situation in

which an employer who has not yet signed a collective

bargaining agreement nevertheless acts in conformity with

it, indicating an intention to be bound. If no agreement is

in force, there is nothing for him to adhere to. Granted,

Corman continued after the collective bargaining agreement expired to make contributions for those employees

(not the two in question, who are among the 25 whom

Corman improperly classified as casual employees) whom

it acknowledged to be regular employees. This is evidence,

as the trustees argue (it is their first argument for why

Corman owes contributions for the two “casual” workers

who worked after the agreement expired), that Corman

considered the agreement to be still in effect despite its

formal expiration. Firesheets v. A.G. Building Specialists, Inc.,

134 F.3d 729, 731 (5th Cir. 1998) (per curiam). It is weak evi-
10 No. 03-1011

dence, however—evidence the district judge was not required to credit—because Corman had made clear its

unwillingness to continue its relationship with the union,

and the funds were the offspring of that relationship.

But before dismissing the evidence, we must consider

the bearing of the fact that ERISA does not authorize contributions to a union welfare benefits plan other

than in accordance with a written agreement, 29 U.S.C.

§ 1145, and that the Landrum-Griffin Act positively forbids

payments to a union or union-related entity other than

in accordance with a written agreement. 29 U.S.C.

§ 186(c)(5)(B). These provisions might seem to compel an

inference that Corman’s contributions were made pursuant to a subsisting, effective agreement, which could

only have been the collective bargaining agreement, tacitly

extended. But the cases hold that an expired agreement—

one that has no contractual force—nevertheless can satisfy

the statutory requirements, “in part because even after

expiration of such an agreement, an employer has a duty

to bargain in good faith and maintain the status quo as

to wages and working conditions until a new agreement

or an impasse is reached.” Alaska Trowel Trades Pension Fund

v. Lopshire, 103 F.3d 881, 883 (9th Cir. 1996); see also Gariup

v. Birchler Ceiling & Interior Co., 777 F.2d 370, 375 (7th

Cir. 1985); Denver Metropolitan Ass’n of Plumbing, Heating,

Cooling Contractors v. Journeyman Plumbers & Gas Fitters Local No. 3, 586 F.2d 1367, 1373 (10th Cir. 1978).

It follows that the continued contributions may not even

have been voluntary on Corman’s part, and if they were

involuntary they certainly were not an acknowledgment of

a contractual obligation. After the expiration of the 1996

collective bargaining agreement and while the parties were

attempting to negotiate a new one, Corman was obligated

by the National Labor Relations Act to maintain the status
No. 03-1011 11

quo, NLRB v. Katz, 369 U.S. 736, 737-39, 743 (1962); NLRB

v. Emsing’s Supermarket, Inc., 872 F.2d 1279, 1284-85 (7th

Cir. 1989), and the status quo included making contributions required by the expired collective bargaining agreement. American Distributing Co. v. NLRB, 715 F.2d 446, 449,

451-52 (9th Cir. 1983); NLRB v. Cauthorne, 691 F.2d 1023

(D.C. Cir. 1982); Producers Dairy Delivery Co. v. Western

Conference of Teamsters Pension Trust Fund, 654 F.2d 625, 627

(9th Cir. 1981); Peerless Roofing Co. v. NLRB, 641 F.2d 734, 736

(9th Cir. 1981). It is true that although the negotiations

terminated in May of 2000, five months after the collective

bargaining agreement expired, Corman continued for two

more months making contributions on behalf of those

employees whom it had classified as regular employees. But

Corman could not be certain that the Labor Board would

agree that a bargaining impasse had been reached in May,

compare Beverly Farm Foundation, Inc. v. NLRB, 144 F.3d

1048, 1055 (7th Cir. 1998), and so it may have decided to

continue contributing for a time merely out of an abundance

of caution.

The last issue, a footnote to the one just discussed, is

whether the district judge was right to strike an affidavit

presented by the trustees that quoted from a “Trust Agreement” that they argue constituted an agreement by Corman

to make contributions even after the expiration of the

collective bargaining agreement. Ordinarily an affidavit

would not be evidence at a trial, but remember that the

trial in this case was, by agreement of the parties, conducted

on a purely paper record.

The judge struck the affidavit on the ground that it was

unreliable because the Trust Agreement itself was not

attached; indeed, the agreement never was made a part of

the record. He was entitled to do this. The meaning of

quoted phrases often depends critically on the unquoted
12 No. 03-1011

context, and it is therefore a bad practice (and will often and

here violate both the “best evidence” rule of Fed. R. Evid.

1002 and the “completeness” rule of Fed. R. Evid. 106) to

present trial excerpts from a key document without introducing the document itself. Frymire-Brinati v. KPMG Peat

Marwick, 2 F.3d 183, 187 (7th Cir. 1993); American Bald Eagle

v. Bhatti, 9 F.3d 163, 167-68 (1st Cir. 1993); United States v.

Marin, 669 F.2d 73, 84-85 (2d Cir. 1982); 2 McCormick on

Evidence § 231 (John W. Strong ed., 5th ed. 1999). Imagine

the trial of a breach of contract case in which the contract is

not placed in evidence, but only a few snippets; that was

what the trustees were trying to do.

They argue Corman did not make its objection to the

affidavit clear enough. But Corman said that the affidavit

was not the best evidence of what the Trust Agreement

provided, and that was good enough. Anyway a judge is

entitled to exclude unreliable evidence even if no party

objects. E.g., 1 id., § 55; HDM Flugservice GMBH v. Parker

Hannifin Corp., 332 F.3d 1025, 1034 (6th Cir. 2003); Maddox v.

Patterson, 905 F.2d 1178, 1180 (8th Cir. 1990); Sterling Drug,

Inc. v. Cornish, 370 F.2d 82, 85-86 (8th Cir. 1966). For even in

our adversarial system the judge is not merely an umpire.

Implicit in the broad discretion that trial judges enjoy in the

management of trials is the judge’s responsibility both to

conserve judicial resources and to secure the basic accuracy

of the litigation process. Had the trustees presented an

affidavit from an astrologer or a psychic concerning the

meaning of “casual employees,” the judge would have been

entitled, indeed required, to exclude it even if Corman had

not objected. The principle is similar to that which would,

as we pointed out in Lloyd v. Loeffler, 694 F.2d 489, 495 (7th

Cir. 1982), divert a judge from deciding a contract case by

reference to the Code of Hammurabi even if the contract

contained a choice of law clause that selected the Code
No. 03-1011 13

to be the law applicable to disputes arising out of the

contract.

With the affidavit properly excluded, there is no basis

for our disturbing the district judge’s ruling that Corman

had no contractual obligation to the funds on behalf of

the two “casual” employees who worked after the last

collective bargaining agreement expired. The judgment of

the district court is therefore affirmed with respect to the

post-expiration contributions, but reversed with respect to

the pre-expiration contributions, and the case is remanded

for a determination of the amount of money to which

the funds are entitled.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-22-03