In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3512

BRICKLAYERS LOCAL 21 OF ILLINOIS

APPRENTICESHIP AND TRAINING PROGRAM

and MASONRY INSTITUTE, BRICKLAYERS

LOCAL 21 PENSION FUND,

Plaintiffs-Appellees,

v.

BANNER RESTORATION, INCORPORATED,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 99 C 6633—Martin C. Ashman, Magistrate Judge.

____________

ARGUED MAY 28, 2004—DECIDED SEPTEMBER 22, 2004

____________

Before BAUER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. The plaintiffs brought this action to

compel an audit of Banner Restoration, Incorporated

(“Banner”) to determine ERISA compliance. Banner filed a

counterclaim, seeking a refund of prior payments. After a

bench trial, the district court ordered an audit and denied
2 No. 02-3512

Banner’s counterclaim. Banner timely appealed. For the

following reasons, we affirm the judgment of the district

court.

I

BACKGROUND

A. Facts

The present dispute involves trust fund litigation to ensure that an employer has paid all required fringe benefit

contributions. The employer, Banner, is an Illinois corporation that performs concrete and masonry restoration work.

The plaintiff trust funds, collectively referred to as “the

Funds,” were established pursuant to a collective bargaining

agreement (“the CBA”) entered into by Illinois District

Council No. 1 of the International Union of Bricklayers and

Allied Craftsmen (“the Bricklayers”) and various other

parties.

Since 1991, Charles Ciancanelli has been the president of

Banner. As president of Banner, Ciancanelli would call

Bricklayer’s Local 21 (“Local 21”) or Local 21’s Apprenticeship

and Training Program, at least four times per year, to

ascertain if any bricklayers were available to perform work.

If bricklayers were available, they would be provided by

Local 21.

On several occasions, Local 21 representatives visited

Banner’s work sites and insisted that Ciancanelli hire Local

21 members, pay union wages and make contributions to

the Funds. Ciancanelli asserted that the representatives

threatened “shut down” of the job sites or union picketing

if Banner would not comply. On one occasion, Ciancanelli

was asked to assume responsibility for the wage and benefit

obligations of another employer working at the same job site
No. 02-3512 3

1 Not all monthly contribution reports contained this language.

For a time, Banner submitted its own computer spreadsheets

rather than the union-provided forms.

as Banner. Ciancanelli’s son, Charles Ciancanelli, Jr.,

testified that representatives came to nearly ninety percent

of Banner’s work sites, demanding that Banner employ

Local 21 members. Local 21 representatives also repeatedly

requested that Ciancanelli sign the CBA on behalf of Banner,

but Ciancanelli never did so.

Despite Ciancanelli’s refusal to sign the CBA, Banner

operated in a manner consistent with CBA obligations. In

particular, from June 1991 through March 1998, Banner submitted monthly fringe benefit contributions and contribution reports to the Funds. The contribution reports noted

the names and social security numbers of union and apprentice employees who performed regular and overtime

work covered by the CBA. Some of the monthly reports

contained the following language:

I hereby certify that this is a true report of all hours

worked by Bricklayers and Bricklayer Apprentices during the month and includes no self-employed persons.

The undersigned agrees to the terms of payment to these

funds set forth in the current applicable Collective Bargaining Agreement and to the terms of the applicable

Trust Agreements, and that dues remitted to District

Council #1 were deducted only from the paychecks of

bricklayers and bricklayer apprentices who have authorized such deductions in writing.

R.40 at 2-3.1

 Ciancanelli signed the monthly contribution

checks drawn on Banner’s various accounts and submitted

with the contribution reports. Banner’s monthly contributions

corresponded with the rates prescribed in memoranda sent

by the Bricklayers to Banner and signatories of the CBA.
4 No. 02-3512

Those memoranda detailed the applicable annual wage and

benefit rates required by the CBA.

Banner also remitted union dues on behalf of its employees to Local 21. Moreover, in February 1995, Banner cooperated in a payroll audit by the Funds pursuant to CBA

terms. The audit covered April 1, 1992, through December

31, 1994. No delinquencies were found. In 1997, Ciancanelli

donated a truck and driver to Local 21’s Apprenticeship and

Training Program. In May 1998, Local 21 notified Banner that

it had failed to remit union dues for one employee, and

Banner responded by sending the dues.

In 1997, 1998 and 1999, Banner was notified of hearings

before the Joint Arbitration Board of the Bricklayers concerning charges of CBA violations brought by Bricklayers

Local No. 14. After each of the three hearings, the Joint

Arbitration Board found CBA violations at a job site in

Romeoville, Illinois. After the 1999 hearing, the Joint

Arbitration Board ordered Banner to pay damages to the

Bricklayers. Banner did not challenge any of the Joint

Arbitration Board’s decisions, nor did it pay damages in

accordance with the 1999 order.

In October 1999, the Funds filed this action seeking a

compliance audit of Banner’s payroll from January 1, 1995,

to the present, alleging that Banner had failed to submit

accurate monthly contribution reports and had failed to

make required monthly contributions. Banner filed a counterclaim for a refund of the monthly contribution payments

it previously had paid the Funds on the ground of mistake

of fact or law.

B. District Court Proceedings

The district court held a bench trial. The Funds entered

into evidence agreed stipulations of fact and offered exhibits
No. 02-3512 5

submitted as part of the final pre-trial order; Banner additionally presented the testimony of Ciancanelli and

Ciancanelli’s son. The Ciancanellis testified that Banner

complied with CBA obligations because of union coercion.

In its written findings of fact after the trial, the district

court rejected, on credibility grounds, the Ciancanellis’ version as to why Banner complied with CBA obligations:

After review, this Court finds that Ciancanelli, as

president of Defendant, did not perform any of the acts

narrated above solely in response to Local 21’s threats

of work stoppages and pickets. This Court finds not

credible Ciancanelli’s testimony that, as president of

Defendant, he sent in the contribution reports, paid

union wages and fringe benefit contributions, etc., solely

in response to Local 21’s threats of work stoppages and

pickets considering his demeanor and his son’s demeanor

at trial when testifying on the issue, and considering

that he hired employees through Local 21, that Local 21

asked him to assume responsibility for the correct and

timely payment of wages and fringe benefit contributions

of another employer working at General Jones Armory,

that he donated a truck and driver to Local 21’s

Apprenticeship and Training Program, and that he

continued on his course of conduct for approximately

seven years without complaining to any agency or similar authority, even in the face of three adverse decisions

and an order to pay damages by the Joint Arbitration

Board.

R.40 at 5-6 (footnotes omitted). The court thus rejected

Banner’s position that it paid monthly contributions only as

a result of union coercion.

The court then determined that Banner had adopted the

CBA through its course of conduct:
6 No. 02-3512

2 After Banner filed its notice of appeal, we ordered the parties

to file jurisdictional memoranda on the issue of whether the

district court had issued a final appealable judgment. Only

Banner responded to our order. Having reviewed Banner’s submission and the supplements to the record, we conclude that the

district court did in fact issue a final order disposing of all claims

and that Banner’s appeal is not premature.

namely, its continuous submission of contribution reports to Plaintiffs, its adherence to the wage and fringe

benefit contribution rates prescribed by the Collective

Bargaining Agreement when making such payments

and contributions, its practice of remitting union dues

on behalf of its employees to Local 21, and its complete

cooperation in the 1995 payroll audit, which revealed no

delinquencies.

R.40 at 8. Moreover, the court concluded that the contributions were made according to the terms of the written CBA,

thus satisfying the requirement of section 302(c)(5)(B) of the

Labor Management Relations Act (“the LMRA”), 29 U.S.C.

§ 186(c)(5)(B), that payments to employee representatives be

made only “as specified in a written agreement with the

employer.” As a result, the court concluded that the Funds

were entitled to conduct an audit and that Banner was not

entitled to recoup any of the amounts paid to the Funds due

to mistake of fact or law. Banner timely appealed.2

II

ANALYSIS

A. Standard of Review

Banner brings a variety of legal and factual challenges to

the district court’s decision. On appeal following a bench

trial, we review the district court’s conclusions of law de
No. 02-3512 7

novo and its findings of fact for clear error. See Petrilli v.

Drechsel, 94 F.3d 325, 329 (7th Cir. 1996). “[O]ne who contends that a finding is clearly erroneous has an exceptionally

heavy burden to carry on appeal.” Spurgin-Dienst v. United

States, 359 F.3d 451, 453 (7th Cir. 2004). Additionally, a

credibility determination “ ’can virtually never be clear

error.’ ” Id. (quoting United States v. Archambault, 62 F.3d

995, 999 (7th Cir. 1995)).

B. Conduct Manifesting Intent To Be Bound 

We begin with the well-established principle “ ‘that a collective bargaining agreement is not dependent on the reduction to writing of the parties’ intention to be bound,’ . . .

rather ‘[a]ll that is required is conduct manifesting an

intention to abide and be bound by the terms of an agreement.’ ” Gariup v. Birchler Ceiling & Interior Co., 777 F.2d 370,

373 (7th Cir. 1985) (quoting Capitol-Husting Co. v. NLRB, 671

F.2d 237, 243 (7th Cir. 1982)); see also Atchley v. Heritage Cable

Vision Assocs., 101 F.3d 495, 500 n.2 (7th Cir. 1996); Operating

Eng’rs Local 139 Health Benefit Fund v. Gustafson Const. Corp.,

258 F.3d 645, 650 (7th Cir. 2001); Moriarty v. Larry G. Lewis

Funeral Dirs. Ltd., 150 F.3d 773, 777 (7th Cir. 1998); Robbins

v. Lynch, 836 F.2d 330, 332 (7th Cir. 1988).

Prior cases that have held an employer bound to a collective bargaining agreement as a result of conduct have

emphasized, among other factors, the payment of union

wages, the remission of union dues, the payment of fringe

benefit contributions, the existence of other agreements

evidencing assent and the submission of the employer to

union jurisdiction, such as that created by grievance procedures. See Robbins, 836 F.2d at 332 (determining that an

employer who promised to abide by but refused to sign a

collective bargaining agreement adopted the agreement
8 No. 02-3512

when it paid the union scale, turned over dues under a

checkoff system, negotiated grievances and made some

pension and welfare contributions); Gariup, 777 F.2d at 376

(indicating that an employer became a party to the collective

bargaining agreement when it signed an Assent of Participation form, returned unsigned Acceptance of Working Agreement forms, made contributions to the pension funds and

paid wages at union rates); Brown v. C. Volante Corp., 194

F.3d 351, 354-56 (2d Cir. 1999) (holding that conduct of an

employer who did not sign two subsequent collective

bargaining agreements but paid contributions and wages at

the rates prescribed by those agreements manifested an

intent to adopt the unsigned agreements); see also Operating

Eng’rs Local 139 Health Benefit Fund, 258 F.3d at 650 (indicating that an employer’s payment of contributions at the rate

provided in a successor contract manifested acceptance). But

see Moglia v. Geoghegan, 403 F.2d 110, 118 (2d Cir. 1968)

(noting the presence of similar factors yet declining to find

that employer adopted a collective bargaining agreement).

Thus, in analyzing Banner’s conduct for evidence of agreement to the CBA, the district court properly looked to these

and similar factors.

To the extent that Banner challenges the district court’s

conclusion that, by its conduct, Banner manifested assent to

the CBA, we decline to disturb the district court’s judgment.

We recognize, as did the district court, that Ciancanelli never

signed the CBA on behalf of Banner. Our precedent makes

clear, however, that a signature to a collective bargaining

agreement is not a prerequisite to finding an employer bound

to that agreement. See Larry G. Lewis Funeral Dirs. Ltd., 150

F.3d at 777 (“[A] signature at the bottom of the collective

bargaining agreement itself is unnecessary.”); see also

Operating Eng’rs Local 139 Health Benefit Fund, 258 F.3d at

650 (“Acceptance . . . can be manifested by conduct as well

as by words.”).
No. 02-3512 9

3 The Funds suggest that “[o]n at least one occasion, Ciancanelli

personally signed the monthly contribution report.” Appellee’s

Br. at 18. However, they make this contention without record cite

in violation of Rule 28(a)(9)(A) of the Federal Rules of Appellate

Procedure, and, upon an independent review of the record, we

did not discover any signed contribution reports.

The apparent absence of a signature to the certification language, despite the space provided for one, limits, to some degree,

the significance of the certification language in this case. We also

note, however, that checks signed by Ciancanelli were remitted

with the reports. Together, we consider the certification language

on the monthly reports and the accompanying payments as

entitled to some weight in an analysis of whether Banner’s

conduct manifested intent to abide by the collective bargaining

agreement. Compare Operating Eng’rs Local 139 Health Benefit Fund

v. Gustafson Const. Corp., 258 F.3d 645, 650 (7th Cir. 2001) (indicating that signed certification language on monthly remittance

reports “was entitled to some weight . . . and maybe a lot” in

considering whether employer was bound to a collective bargaining agreement) with Dugan v. R.J. Corman R.R. Co., 344 F.3d 662,

668 (7th Cir. 2003) (concluding that, under the circumstances,

signed certification language was evidence, but only “weak

evidence,” that employer considered collective bargaining

agreement to be in effect).

Other factors (to which Banner itself stipulated) demonstrate conduct manifesting assent to the terms of the CBA.

For nearly seven years, Banner submitted monthly contribution reports to the Funds. In accordance with those reports,

Banner paid fringe benefit contributions to the Funds. The

contributions were made according to the rates prescribed

by the CBA and were detailed in memoranda sent to

signatories of the CBA (and to Banner). Some of the monthly

contribution reports contained certification language indicating that the contributions were made pursuant to the

obligations of the CBA.3

 Additionally, Banner remitted

union dues on behalf of employees and paid wages at the
10 No. 02-3512

4 Banner characterizes this factual finding of the district court as

clearly erroneous. However, the finding corresponds directly

with Agreed Stipulation No. 21: 

At least four to five times per year, Ciancanelli called either

or both Local 21 and Local 21 Apprenticeship and Training

Program to see if either had any apprentice bricklayers

available for work. According to Ciancanelli, Local 21 and

the Apprenticeship Program always were cooperative in

providing bricklayers, if any were available.

R.50 at 6.

5 Banner invites us to reject the district court’s credibility determination on the ground that it is contrary to the parties’ agreed

stipulations. In particular, Banner asserts that the parties stipu-

(continued...)

rates prescribed by the CBA. It cooperated in an audit by the

Funds in 1995. Moreover, about four times per year, Banner

requested bricklayers from Local 21 or its Apprenticeship

and Training Program.4

 It donated a truck to Local 21’s

training program. Finally, Banner took no action to challenge

jurisdiction after the Joint Arbitration Board found it guilty of

labor violation charges under the CBA brought by another

Local in 1997, 1998 and 1999.

Before the district court, Banner attempted to minimize

this objective evidence of intent to be bound, characterizing

the seven-year course of conduct as the product of coercion.

The district court rejected this explanation, largely on

credibility grounds. It disbelieved the Ciancanellis’ testimony that Banner paid union wages, remitted union dues,

made fringe benefit contributions and repeatedly submitted to

jurisdictional authority created by the CBA solely because

union representatives threatened picketing. We see no reason

to reject the court’s credibility determination, especially

given the degree of deference required by the standard of

review.5 See Spurgin-Dienst, 359 F.3d at 453.
No. 02-3512 11

5 (...continued)

lated that “Ciancanelli . . . submitted the monthly contribution

reports in response to threats . . . to shut his jobs down if he did

not do so.” Appellant’s Br. at 17 n.10. 

Banner’s purposeful omission is misleading. Stipulation No. 29

actually reads: 

Ciancanelli asserts that he submitted the monthly contribution reports and contacted Local 21 and/or the Local 21

Apprenticeship and Training program for workers in response to threats by Local 21 representatives to shut his jobs

down if he did not do so. 

R.50 at 8 (emphasis added). Thus, Banner’s complaint regarding

the court’s credibility determination rings hollow. That determination was consistent with the agreed stipulations and well

within the district court’s discretion.

We note further that Ciancanelli’s assertion is not supported by

objective evidence in the record. For instance, during the sevenyear relationship, Banner never complained to an appropriate

authority about the alleged acts of the union representatives, nor did

it indicate, for instance, on its monthly contribution checks, that

it paid the amounts only under protest. For this additional

reason, we accept the district court’s credibility determination.

Nonetheless, even accepting the Ciancanellis’ testimony,

the Ciancanellis testified that the representatives of the

union threatened picketing or “shut down” of jobs. We have

indicated, however, that threats to strike do not nullify

conduct manifesting assent to a collective bargaining

agreement. In Robbins, an employer attempted to explain

away its compliance with the terms of a collective bargaining agreement, partially on the ground that the union had

threatened to strike. See Robbins, 836 F.2d at 332. We rejected

this excuse:

Lynch was bound, under the approach of Gariup. The

threat to strike is unexceptional. Unions frequently de-
12 No. 02-3512

cline to work unless the employer adheres to a collective

bargaining agreement. The threat of “no agreement, no

work” hardly makes adherence to the agreement involuntary, as Lynch supposes. This is the threat, express or

implied, of every contractual negotiation. (E.g., “Unless

you pay my price, I won’t sell you my iron ore.”)

Id. at 333. As to the threats of picketing, we note that, during

the seven years of allegedly coercive acts by the union,

Banner never once complained to the National Labor

Relations Board (“NLRB”) or any other authority about the

union’s activities.

In sum, the district court was entitled to conclude that

Banner’s seven-year course of conduct manifested an intent

to be bound to the terms of the CBA. Although Ciancanelli

never signed the CBA, the company’s regular monthly

contributions, payment of union wages, remission of union

dues, failure to challenge jurisdictional authority created by

the CBA and other activities consistent with the conduct of

a signatory constitute acceptance by performance.

C. “Written Agreement” Requirement

Having concluded that Banner’s conduct manifested an

intent to abide by the terms of the CBA, we next must

consider whether Banner’s monthly fringe benefit contributions comply with section 302(c)(5) of the LMRA. Section

302 of the LMRA generally forbids employer payments to

representatives of employees. See 29 U.S.C. § 186(a). However, section 302(c)(5)(B) contains an exception for payments

made in conformity with the terms “specified in a written
No. 02-3512 13

6 29 U.S.C. § 186(c) provides in relevant part:

The provisions of this section shall not be applicable . . . (5)

with respect to money or other thing of value paid to a trust

fund established by such representative, for the sole and

exclusive benefit of the employees of such employer, and

their families and dependents (or of such employees, families, and dependents jointly with the employees of other

employers making similar payments, and their families and

dependents): Provided, That . . . (B) the detailed basis on

which such payments are to be made is specified in a written

agreement with the employer . . . .

agreement with the employer.” 29 U.S.C. § 186(c)(5)(B).6

Banner argues that the payments it made to the Funds were

not made under a “written agreement.” On this basis,

Banner seeks to avoid any present obligations to the Funds

and, in its counterclaim, seeks a refund of the amounts previously paid in monthly contributions to the pension fund.

Section 302 of the LMRA ensures that payments to employee representatives are made for proper purposes. The

Supreme Court has described the policy concerns that animate section 302:

Those members of Congress who supported the amendment were concerned with corruption of collective bargaining through bribery of employee representatives by

employers, with extortion by employee representatives,

and with the possible abuse by union officers of the

power which they might achieve if welfare funds were

left to their sole control.

. . . .

Congress believed that if welfare funds were established which did not define with specificity the benefits

payable thereunder, a substantial danger existed that
14 No. 02-3512

such funds might be employed to perpetuate control of

union officers, for political purposes, or even for personal gain.

Arroyo v. United States, 359 U.S. 419, 425-26 (1959); see also

Mazzei v. Rock-N-Around Trucking, Inc., 246 F.3d 956, 961 (7th

Cir. 2001) (quoting Arroyo, 359 U.S. at 425-26); Gariup, 777

F.2d at 375 (same). In Gariup, we ourselves explained:

Congress required that a written agreement exist between the employer and the employees’ representative

governing the rights of employees on whose behalf the

contributions were made to ensure “that employee

benefit trust funds ‘are legitimate trust funds, used actually for the specified benefits to the employees of the

employers who contribute to them.’ ”

Gariup, 777 F.2d at 375 (quoting U.M.W.A. Health & Ret.

Funds v. Robinson, 455 U.S. 562, 570 (1982)). Mindful of these

legislative purposes underlying the provision, we consider

whether Banner’s contribution obligations were “specified

in a written agreement with the employer,” as required by

section 302(c)(5)(B). 29 U.S.C. § 186(c)(5)(B).

We begin with the proposition that “a signed, unexpired

collective bargaining agreement between the parties is not

required to satisfy section 302(c)(5)(B).” Gariup, 777 F.2d at

375; see Moriarty v. Larry G. Lewis Funeral Dirs. Ltd., 150 F.3d

773, 777 (7th Cir. 1998) (“[A] signature at the bottom of the

collective bargaining agreement itself is unnecessary.”); see

also Central States, Southeast & Southwest Areas Pension Fund

v. Behnke, Inc., 883 F.2d 454, 460 (6th Cir. 1989) (indicating

that an interim agreement and a participation agreement

that incorporated a written trust agreement sufficiently comported with section 302(c)(5)(B)). Indeed, in some situations,

even an “expired agreement—one that has no contractual

force—nevertheless can satisfy the statutory requirements.”
No. 02-3512 15

7 We recognize that the existence of a signature to some document has been relevant in cases addressing whether an employer

is bound to make fringe benefit contributions. See, e.g., Gariup v.

Birchler Ceiling & Interior Co., 777 F.2d 370, 376 (7th Cir. 1982)

(citing employer’s signature to Assent of Participation form

which referenced the unsigned CBA); Brown v. C. Volante Corp.,

194 F.3d 351, 353 (2d Cir. 1999) (noting submission of signed

contribution reports). Signatures in these cases are certainly relevant to establish the employers’ assent to the terms of the agreements upon which they are found. Cf. Laborers’ Pension Fund v.

Blackmore Sewer Const., Inc., 298 F.3d 600, 606 (7th Cir. 2002)

(indicating in the context of a collective bargaining agreement

negotiated by a multi-employer association that “[s]igning the

(continued...)

Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 668 (7th Cir.

2003); see also Alaska Trowel Trades Pension Fund v. Lopshire,

103 F.3d 881, 883 (9th Cir. 1996) (indicating that a repudiated pre-hire agreement “provides a sufficient safeguard

against the illegal payments § 302(c)(5)(B) is intended to prevent”); Denver Metro. Ass’n of Plumbing, Heating, Cooling

Contractors v. Journeyman Plumbers & Gas Fitters Local No. 3,

586 F.2d 1367, 1373 (10th Cir. 1978) (indicating that an expired collective bargaining agreement and trust agreements

incorporated therein satisfy section 302(c)(5)(B) (quoting

Hinson v. NLRB, 428 F.2d 133, 139 (8th Cir. 1970))); cf. NLRB

v. Houston Bldg. Servs., Inc., 128 F.3d 860, 864-65 (5th Cir.

1997) (indicating that valid “make whole” remedy ordered

by NLRB against successor employer who had not signed a

collective bargaining agreement did not offend the policies

behind section 302(c)). Thus, obligations have been enforced

in a variety of circumstances, absent a signature to a current

collective bargaining agreement.

Moreover, section 302(c)(5)(B) does not require a signed

agreement;7

 it merely requires a “written” one. 29 U.S.C.
16 No. 02-3512

7 (...continued)

final agreement that has been negotiated certainly qualifies as

conclusive evidence that the employer intended to be bound”).

To the extent signatures are relevant for this purpose, we note

Ciancanelli’s signature to the monthly contribution checks remitted for nearly seven years. Nonetheless, we emphasize that

section 302(c)(5)(B) of the LMRA itself imposes no signature

requirement.

8 Both the Second and the Sixth Circuits have distinguished their

prior case law on this issue. In National Leadburners Health &

Welfare Fund v. O.G. Kelley & Co., 129 F.3d 372 (6th Cir. 1997), the

Sixth Circuit distinguished its prior decision in Merrimen v. Paul

F. Rost Electric, Inc., 861 F.2d 135 (6th Cir. 1988). In Merrimen, the

court had found significant the absence of a signature to the CBA

in the context of the section 302(c)(5)(B) analysis. See id. at 139. In

that case, however, the CBA itself required a signature to a Letter

of Assent in order to demonstrate acceptance of the CBA. See id.

at 136; see also Nat’l Leadburners Health & Welfare Fund, 129 F.3d at

375 (emphasizing this fact). In National Leadburners Health &

Welfare Fund, the Sixth Circuit distinguished Merrimen on that

ground and clarified that Merrimen “does not impose a statutory

signature requirement.” Id. at 375. The court thus concluded that

an employer could be bound by a collective bargaining agreement negotiated by a multi-employer association, despite the

absence of that employer’s signature to the agreement. See id. at

375-76.

(continued...)

§ 186(c)(5)(B); see Brown, 194 F.3d at 355 (“Section

302(c)(5)(B) does not require that an agreement be signed,

only that it be ‘written’ and set forth ‘a detailed basis on

which . . . payments are to be made’ to a trust fund.”); Nat’l

Leadburners Health & Welfare Fund v. O.G. Kelley & Co., 129

F.3d 372, 375 (6th Cir. 1997) (“The statute does not specify

any signature requirement and the term ‘written agreement’

is unambiguous in relation to such.”).8

 As our colleagues in
No. 02-3512 17

8 (...continued)

Similarly, in Brown, 194 F.3d at 351, the Second Circuit distinguished its prior decision in Moglia v. Geoghegan, 403 F.2d 110 (2d

Cir. 1968). In Moglia, the court had relied partially on the fact that

the collective bargaining agreement was unsigned. See Moglia, 403

F.2d at 114-15. In Brown, however, the court suggested that Moglia

rested on the absence of conduct manifesting assent to the terms

of the agreement. See Brown, 194 F.3d at 355 n.1. The court

declared: “We did not . . . graft a signature requirement onto

Section 302(c)(5)(B).” Id.

9 The Funds invite us on appeal to rely upon the existence of the

certification language on some of the monthly contribution reports as a writing sufficient to satisfy section 302(c)(5)(B). See

Appellee’s Br. at 17 (“[T]he language contained within the

monthly contribution reports can and should suffice as a written

agreement.”).

(continued...)

the Sixth Circuit concluded: “[T]he statute is satisfied by a

written agreement to which an employer is bound, not a

written agreement to which an employer is bound which

also carries that employer’s signature.” Nat’l Leadburners

Health & Welfare Fund, 129 F.3d at 376.

In the present case, the parties do not dispute that the

contributions made by Banner to the Funds were made in

accordance with the terms of the written CBA negotiated by

the Bricklayers, including Local No. 21. The record indicates

that Banner paid the monthly contributions as directed by

the memoranda it received; those memoranda detailed the

wage and benefit rates required by the CBA. Additionally,

the contribution reports submitted by Banner for a time,

with its monthly contributions, also referenced the “terms

of payment to these funds set forth in the current applicable

Collective Bargaining Agreement” and “the terms of the

applicable Trust Agreements.” R.40 at 2-3.9

 Moreover,
18 No. 02-3512

9 (...continued)

We note for the sake of clarity, however, that section 302(c)(5)(B)

requires that the “written agreement” specify the “detailed basis

on which such payments are to be made.” 29 U.S.C. § 186(c)(5)(B).

Certification language, by itself, does not provide the specificity

necessary to satisfy section 302(c)(5)(B). However, such certification language is significant, and may be sufficient, to the extent

that it incorporates other written agreements with the employer—

such as a collective bargaining agreement or trust agreements—

which do set forth the “detailed basis” for payments as required

by section 302(c)(5)(B). See Guthart v. White, 263 F.3d 1099, 1103

(9th Cir. 2001) (“Under the plain words of the statute, any written

agreement with the employer can establish an employee’s

eligibility for Trust benefits, so long as it actually specifies,

directly or by incorporation, ‘the detailed basis’ on which contributions are to be made.” (emphasis added)); see also Moriarty v.

Larry G. Lewis Funeral Dirs. Ltd., 150 F.3d 773, 777 (7th Cir. 1998)

(suggesting significance of certification language); Operating

Eng’rs. Local 139 Health Benefit Fund v. Gustafson Const. Corp., 258

F.3d 645, 650 (7th Cir. 2001) (similar).

Banner does not contend that the contributions have been

credited to Funds for any improper purpose.

In this case, the existence of a “written agreement,” albeit

an unsigned one, detailing the terms upon which the fringe

benefit contributions were to be made, and Banner’s payment

of contributions in accordance with that agreement, effectively

concludes our inquiry. See Brown, 194 F.3d at 355 (“[A]n

unsigned, written agreement satisfies Section 302(c)(5)(B)’s

‘written agreement’ requirement.”). Under these particular

circumstances, section 302(c)(5)(B) and the policy concerns

behind that provision are met because the contributions were

made as “specified in a written agreement with the employer.” 29 U.S.C. § 186(c)(5)(B). Banner cannot invoke

section 302 of the LMRA as a loophole through which to
No. 02-3512 19

escape obligations to the Funds. See Gariup, 777 F.2d at 376

(concluding that the employer’s “attempt to use the written

agreement requirement of section 302(c)(5)(B) to circumvent

its responsibilities under the collective bargaining agreement must fail”).

Having reached this conclusion, we find no error in the

district court’s disposition of Banner’s counterclaim. Banner’s

contributions were not made in violation of section

302(c)(5)(B) of the LMRA. Thus, Banner is not entitled to a

return of its payments on that ground.

Conclusion

We conclude that the district court properly ordered

Banner to submit to an audit of its fringe benefit contributions

and properly dismissed Banner’s counterclaim. For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED
20 No. 02-3512

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-22-04