contributions. The Funds claims are based on contracts and not
principles of labor law and cover whole bargaining units not just
the members of the particular union. Moriarty v. Larry G. Lewis
Funeral Directors, Ltd., 150 F.3d 773, 776 (7th Cir. 1998). In
other words, if the CBA provides that Glaziers are to perform
glazing work, an employer cannot avoid the fund obligations by
assigning work to non-union members or members of another union.
Therefore, the question is: is the work performed covered work
under the relevant CBA? If so, contributions are due; if not, no
payment is required.

Glass Masters have admitted that the audited work is covered
by the Glazier CBA in its response to the Funds’ Local Rule 56.1
statement and in its responsive brief. Since the work involved
glazing it would be hard to deny. Therefore pursuant to the CBA
the Funds became obligated to cover the employees whether they are
members of the Glaziers’ Union or not. Larry G. Lewis, Id. It is
unfortunate that Glass Masters has apparently become obligated to
contribute to the Funds of both unions for the disputed work but it
has only itself to blame. Glass masters entered into CBAs with two
unions apparently having jurisdiction to perform glazing work,
without designating in the CBAs which union was to perform the
work, The Funds cannot be expected to divine which union Glass
Masters would favor. Joint jurisdiction to perform specific work

does not amount to a jurisdictional dispute. Chicago District



the glazing work for which plaintiffs seek recovery in this suit,
apparently because Glass Masters believed it had the right to
assign glazing work to the Iron Workers Union. Glass Masters
asserts that it made the required contributions to the Iron Worker
Funds, corresponding to the plaintiffs’ Funds in this case, and
therefore need not contribute to the plaintiffs’ Funds. The nub of
the dispute therefore is whether the assignment of glazing work to
the Iron Workers will excuse Glass Masters from making

contributions to the Glazier Funds for the same work, even though

it is covered work under the Glazier CBA.
DISCUSSION

Section 515 of ERISA obligates an employer to make
contributions to a plan to which it is contractually obligated.
Defenses which might exist between the employer and the union,
which are not apparent on the face of the written agreement, are
not binding on the Funds, which has a status as a holder in due
course. Therefore if the work done by defendants’ employees is
work that is cognizable under the Glazier CBA, the defendants are
required to make contributions for the work, unless it is apparent
otherwise from the face of the agreement. Central States v. Gerber
Truck Service, Inc., 870 F.2d 1148, 1153 (7th Cir. 1989) (en banc).
An employer may not choose persons to perform covered work which
has the effect of excluding persons covered by the collective

bargaining agreement and thereby avoiding the obligation to make


Council of Carpenters Pension Fund v. Faith Builders, Inc.,
No. 00 C 1036, 2001 WL 99839 at *4 (N.D. Ill. Jan. 30, 2001). Even
if it did rise to the level of a jurisdictional dispute, it would
not affect the right of the Funds to recover because NLRB defenses
are normally not available to defeat an ERISA collection action.
Martin v. Garman, 945 F.2d 1000, 1005 (7th Cir. 1991).
CONCLUSION

The Court therefore finds that the Funds are entitled to
Summary Judgment and since Glass Master does not dispute the hours
and contribution levels, judgment is entered in favor of the Funds
in the amount of Eighty-five Percent (85%) of the shown due by

the audit.
IT IS SO ORDERED.

|

Harry 7 felhéMelbet, Judge

United States District Court

bate: Lali Ai08



.

MinuteOrer Forin (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Harry D. Leinenweber than Assigned Judge
CASE NUMBER 02 C 3503 DATE 4/16/2003
CASE Trustees of the Glaziers, et al vs. Glass Masters Ltd., et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state brieffy the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) mt Brief in support of motion due

@) a Answer brief to motion due. . Reply to answer brief due

(4) a Ruling/Hearing on set for at

(5) a Status hearing[held/continued to] [set for/re-set for] on set for at

(6) i) Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) Oo Trial{set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OOFRCP4(m) Local Rule 41.1 OFRCP41(a\X1) O FRCP41(a)(2).

(io) = {Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: The Court finds that
the Funds are entitled to Summary Judgment and since Glass Master does not dispute the hours and
contribution levels, judgment is entered in favor of the Funds in the amount of Eighty-Five (85%) of the
sums shown due by the audit.

(1) @ (For further detail see order attached to the original minute order.]

No notices required, advised in open court,
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

a | Docketing to mail notices.

Mail AO 450 form. yunod L}¥LSI0 sn
inte ‘
Copy to judge/magistrate judge. yaa 19
courtroom 60:3 Hy Liddy Su
WAP deputy’s
initials +
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central Clerk's Office naling deputy initiaks



IN THE UNITED STATES DISTRICT Col

FOR THE NORTHERN DISTRICT OF Tunndrs | L E D

EASTERN DIVISION

APR 1 g 2003
TRUSTEES OF THE GLAZIERS, JUDGE HARRY D. LEINENWEBER
ARCHITECTURAL METAL AND GLASS U.S. DISTRICT COURT JUDGE

WORKERS LOCAL UNION NO. 27
WELFARE AND PENSION FUNDS,

Plaintiffs,
Case No. 02 C 3503
v.

GLASS MASTERS LTD., an Hon. Harry D. Leinenweber
Illinois corporation
involuntarily dissolved and
PETER GIBSON, Individually and yet
d/b/a GLASS MASTERS LID., pocneteo

003
Defendants. APR 112

MEMORANDUM OPINION AND _ ORDER

The plaintiffs are fiduciaries and plan sponsors of the
Glaziers, Architectural Metal and Glass Workers Local Union No. 27
Welfare Fund and Pension Fund (respectively, the “Funds”). They
bring this action under ERISA to recover delinquent contributions
and other amounts the Defendants allegedly owe under the collective
bargaining agreements and trust agreements to which defendants are
signatories. The defendants are a dissolved corporation and its
incorporator, Peter Gibson, (collectively, “Glass Masters”) who
continues to operate the business as a d/b/a and is therefore

liable for its obligations. 805 ILCS 5/3.20.

ey~



BACKGROUND

Glass Masters has bound itself to successive Collective
Bargaining Agreements (“CBAs”) with the Glaziers’ Local beginning
in 1994 and extending through June 2003. In October 1997, Glass
Masters executed a Collective Bargaining Agreement with an
Ironworkers Union local. Less than a year later, in July 1998,
Glass Masters executed a new CBA with the Glaziers’ Local. The
Glazier CBA bargaining unit encompasses employees who perform
glazing work, and Glass Masters contends that the Iron Workers’ CBA
does also. Gibson admits that the CBAs have overlapping coverage
for Glazing work but contends that the CBAs give him the right to
select which Union is to do the work.

The plaintiffs’ auditor conducted a fringe benefit compliance
audit with respect to two jobs Glass Masters performed during the
period from January 1, 1999 through July 31, 2002. The two jobs
included work entirely within the geographic coverage of the
Glaziers CBA. Eighty-five to ninety percent of the work under the
audit was clearly work covered by the Glaziers’ CBA. (“Article 6
Classification/Scope of Work, Section 1. It is mutually understood
and agreed that none but Journeyperson Glaziers or Apprentices will
be employed on the following classifications: general glazing,
» . . “), The remaining fifteen percent apparently involved the
installation of pre-glazed glass or metal work which is not covered

work under the CBA. No contributions were made by defendants for