was resubmitted to Arbitrator Nicolau for clarification. Prior to the issuance of a
clarification, UPS and Teamsters National proposed a Supplemental Consent Award
that Arbitrator Nicolau subsequently approved and implemented. The Supplemental
Consent Award afforded the part-time employees, who were retroactively made full-
time employees, only the difference between pension contributions they already earned
as part-time employees and pension contributions they would have received as full-
time employees. Local 710 Fund, however, was not a party to the arbitration and was
therefore not directly bound by Arbitrator Nicolau’s clarification decision. In June
2002, Local 710 Fund sought relief from this court and filed the present action.

In December 2002, Local 710 Fund and UPS filed cross-motions for summary
judgment. Local 710 Fund’s motion requested the court to award interest and
liquidated damages on the alleged $1,573,632.00 delinquency, audit fees of
$163,542.46, attorney fees, and costs, UPS requested that the court grant summary
judgment in its favor, as the matter was before an arbitrator at that point, arguing that
Local 710 Fund should not be allowed to subvert the arbitration process under the
Local CBA for determining what UPS’s pension fund contributions should be. The
court denied both motions as considerable issues of disputed fact existed as to liability

and damages that precluded summary judgment for either party. Local 710 I.B.T.



the benefits through a pension fund structure, but employees do not earn or receive the
contributions. Instead, employees earn and receive the benefits in the form of service
credits that translate to monthly benefits upon retirement.

The issues presented in the parties’ motions, such as damage calculations and
the specific meaning of industry terms of art, are not issues that can be disposed of via
the procedural vehicle of summary judgment. The dispute between the parties is
genuine, as both have proffered reasonable evidence to support their calculations of
what amount would make the affected employees whole. The issues presented are
material, because this entire cause of action is based upon employee benefits and the
amount that the affected group of employees are allegedly entitled to receive. Further,
the issue raised by UPS regarding the connotation of certain words when used in the
context of employee benefits constitutes an additional genuine issue of material fact,
rendering summary judgment improper. In a previous ruling, this court addressed only
“the proper formula to use in calculating any deficiency in contributions to the affected
funds, not the resulting dollar amount and attendant fees, interest, etc.” See Local 710

LB.T. Pension Fund, 2003 U.S. Dist. LEXIS 19457, at *3. The positions set forth in

the respective motions, although logistically different, provide sufficient support for

a reasonable trier of fact to find in favor of either party. Resolving disputes over the



LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In seeking a
grant of summary judgment the moving party must 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific
evidence on a particular issue or by pointing out “an absence of evidence to support the
non-moving party’s case.” Celotex, 477 U.S. at 325. Once the movant has met this
burden, the non-moving party cannot simply rest on the allegations in the pleadings,
but “must set forth specific facts showing that there is a genuine issue for trial.”
Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a motion for summary
judgment is not simply a “metaphysical doubt as to the material facts,” Matsushita

Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); rather, “[a]

genuine issue exists when the evidence is such that a reasonable jury could find for the
non-movant,” Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). When

reviewing the record we must draw all reasonable inferences in favor of the

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Pension Fund v, United Parcel Service, Inc., No. 02 C 4420 (N.D. Ill. Mar. 24, 2003)

(order denying the parties’ respective summary judgment motions).

In August 2003, both parties filed cross-motions for partial summary judgment
regarding UPS’s offset defense. These motions focused on whether UPS should have
to pay full contributions to the Local 710 Fund for § 25.11 employees in light of the
contributions UPS had already made on their behalf to the UPS Pension Plan; a
different pension plan for part-time employees. This court agreed with UPS’s position,
granted UPS’s motion, and denied Local 710 Fund’s motion. See Local 710 LB.T,
Pension Fund v. United Parcel Service, Inc., No. 02 C 4420, 2003 U.S. Dist. LEXIS
15687 at *10 (N.D. Ill. Sept. 4, 2003), Final judgment was entered on the same day.

Local 710 Fund subsequently moved to reconsider the court’s September 4
tuling pursuant to Fed. R. Civ. Proc. 59(e) and to vacate entry of final judgment
pursuant to Fed. R, Civ. Proc. 60(a). On October 28, 2003, we denied the motion to
reconsider but granted the motion to vacate, as the September 4 opinion “addressed
only the proper formula to use in calculating any deficiency in contributions to the
affected funds, not the resulting dollar amount and attendant fees, interest, etc.” Local
710 L.B.T. Pension Fund v. United Parcel Service, Inc., No. 02 C 4420, 2003 U.S. Dist.
LEXIS 19457, at *3 (N.D. Ill. Oct. 28, 2003).

Local 710 Fund and UPS have now filed cross-motions for summary judgment.

-5-


whatever deficiency of contributions existed when this suit was filed in June 2002 from
the dates the reduced weekly contributions should have been paid to the Local 710
Fund through October 24, 2002; (2) liquidated damages equal to the interest owed; (3)
$163,542.46 for auditing services in connection with investigating the alleged
delinquencies; and (4) reasonable attorney fees and costs associated with this action.

UPS, in moving for summary judgment, has offered a diametrically opposite
view as to what amount would purportedly make 166 retroactively classified
employees whole. UPS asserts that summary judgment in an amount no greater than
$336,993.00 is appropriate. UPS offers numerous bases and a step-by-step arithmetic
approach to support the notion that the Local 710 Fund has significantly overstated the
amount to which the affected employees may be entitled. Most notably, UPS urges that
this case is about benefit entitlement, not contribution entitlement. UPS argues that
“contributions” to the UPS National Pension Plan have no relevance to funding the
Local 710 Fund, and the 166 retroactively classified employees must be made whole
as to service credits they would have earned, for which “contributions” cannot here be
a measuring stick. UPS cautions that in the pension/actuarial world, subtleties among
words like “service credits,” “benefits,” and “contributions,” have potentially different
connotations when used in defined benefit plans, defined contribution plans, and multi-

employer and single-employer plans. UPS goes on to argue that contributions provide

-8-



“Minute Order Form (06/97)

United States District Court, Northern District of Minois

Name of Assigned Jud; Si dge If Oth
vor Magistrate Judge Charles P. Kocoras than Aulgued Judge
CASE NUMBER 02 C 4420 DATE 10/25/2004
CASE Local 710 vs. United Parcel Service, Inc.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
q) Qa Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
@) o Answer brief to motion due. . Reply to answer brief due. :
(4) oO Ruling/Hearing on set for at :
(5) a Status hearing set for 11/8/2004 at 9:30 A.M..
(®) o Pretrial conference[held/continued to) [set for/re-set for] on set for at
(7) Qo Trial[set for/re-set for] on at
(8) Qo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4m) Cl Local Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).

do) [Other docket entry] ENTER MEMORANDUM OPINION; Both motions (Docs 56-1 & 57-1)

for summary judgment are denied. All other pending motions are also denied. Ruling set for October 28,

2004 is stricken.
(dil) gf (For further detail see order attached to the original minute order.)

No notices required, advised in open court.

No notices required. urbe of

OCT 2 6 2004

Notices mailed by judge's staff.
Notified counsel by telephone,
a | Docketing to mail notices.

Mail AO 459 form, exci oc tie
Copy to jyfdgetrhagistrate judge. an ap.cld on
Leipee yg
dase mailed notice
SCT oat 2 wognitt
sey gia St
__, Dateftine received in ; -
Gentil Clerk's Office Dmiling deputy initials



meaning certain contractual terms’ have in a particular context and their effect on any
subsequent award of damages, if any, is not appropriate on the current state of the
record.

In accordance with the conclusion that summary judgment is not warranted as
to either parties’ positions, UPS’s motion for leave to file a supplemental declaration
in support of its motion for summary judgment is denied. Local 710 Fund’s motion to
strike UPS’s Rule 56.1 statement of undisputed material facts is rendered moot and is
thus denied,

CONCLUSION
Based on the foregoing analysis, both motions for summary judgment are

denied. All other pending motions are also denied.

Charles P. Kocoras
Chief Judge
United States District Court

Dated: _ OCT. 5 2004

? The issue of the specific meaning of the term “contributions” was first raised
in UPS’s motion for summary judgment. The parties have not developed the issue, so
the court is not in a position to determine whether that term is unambiguous as used in
the parties’ agreement. Without resolving that threshold question, we cannot determine
the meaning of that term as a matter of law.

-10-



non-movant; however, “we are not required to draw every conceivable inference from
the record-only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v.
Lee, 928 F.2d 232, 236 (7th Cir. 1991).

When parties file cross-motions for summary judgment, each motion must be
assessed independently, and denial of one does not necessitate the grant of the other.
M. Snower & Co. v, United States, 140 F.2d 367, 369 (7th Cir. 1944). Rather, each
motion evidences only that the movant believes it is entitled to judgment as a matter
of law on the issues within its motion and that trial is the appropriate course of action
ifthe court disagrees with that assessment. Miller v. LeSea Broadcasting, Inc., 87 F.3d
224, 230 (7th Cir. 1996). With these principles in mind, we turn to the parties’
motions.

DISCUSSION

Local 710 Fund, pursuant to Fed. R. Civ. P. 56(c), has moved for partial
summary judgment on several issues. It contends that it is entitled to $1,497,113.36
in delinquent contributions. Local 710 Fund arrived at this amount by deducting
UPS’s offset credit, or the pension contributions UPS has already paid employees
under part-time status ($76,518.64), from the amount of pension contributions that
employees would have earned under full-time status ($1,573,632.00). Local 710 Fund

further asserts that is entitled, as a matter of law, to recover from UPS: (1) interest on

-7-


received full-time jobs be made whole retroactively for what they had lost by not
having full-time jobs for the first year of the National CBA..

At that point, the Local 710 Union (which was not a party to the above-
mentioned arbitration) and UPS contracted to apply Arbitrator Nicolau’s decision, as
issued, to their own identical dispute for the first year of the Local CBA. UPS and
Local 710 Fund’ memorialized this agreement in the First Year Agreement. UPS and
Local 710 Fund also executed a Second Year Agreement, which mirrored the First
Year Agreement except that it did not explicitly state that it was meant to apply
Arbitrator Nicolau’s decision in the national dispute to the local dispute.

Some time after the First and Second Year Agreements were executed, another
dispute ensued between UPS and Teamsters National regarding what Arbitrator
Nicolau meant by “making the employees whole” as to pension contributions.
Teamsters National argued that the new full-time employees should receive
contributions to their pension funds in the amounts they would have received had they
enjoyed full-time status during the delinquent time period. UPS argued that it did not
have to pay full contributions because the employees at issue already received some

contributions in a separate pension fund for part-time employees. The issue in dispute

' Local 710 Fund has conceded that it is bound by the First and Second Year
Agreements executed by the union Local 710. Accordingly, Local 710 Fund will be
referred to directly as the contracting party.

3-



history between the two parties prior to the filing of this action provides the necessary
context for the motions presently under consideration.

The Local CBA was executed between UPS and Local 710. The Local CBA
mirrored a national collective bargaining agreement (“the National CBA”), which was
executed between UPS and Teamsters UPS National Negotiating Committee
(“Teamsters National”). Both CBAs required UPS to create a certain number of full-
time positions out of existing part-time positions during each year of the CBAs’ five-
year duration, spanning from August 1, 1997, to July 31, 2002. The Local CBA
required UPS to create 75 full-time positions each year, whereas the National CBA
required the creation of 2000 full-time positions per year. (Local CBA § 25.11;
National CBA § 22.3).

During the first two years the CBAs were in effect, UPS refused to create any
full-time positions, as UPS thought that a downsizing exception to its obligation
applied. Teamsters National contested UPS’s belief and initiated an arbitration to settle
the disagreement. On February 11, 2000, Arbitrator Nicolau ruled that UPS was
obligated to create the full-time positions as set forth in § 22.3 of the National CBA.
He further ordered UPS to immediately begin creating the full-time positions for the

adversely affected first-year employees and directed that those who should have


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LOCAL 710 I.B.T. PENSION FUND,
Plaintiff,
02 C 4420

vs.

UNITED PARCEL SERVICE INC.,

www SS SS Sw

Defendant.

6
MEMORANDUM OPINION
MEMO. UM OPINIO) log

CHARLES P. KOCORAS, Chief District Judge:

This matter comes before the court on the parties’ cross-motions for summary
judgment. For the reasons set forth below, both motions for summary judgment are
denied. All other pending motions are also denied.

BACKGROUND

Plaintiff Teamsters Local 710 Pension Fund (“Local 710 Fund”) brought the
present action against Defendant United Parcel Service, Inc. (“UPS”) in June 2002 to
compel UPS to pay allegedly delinquent contributions owed under the terms of a
collective bargaining agreement (“the Local CBA”) pursuant to Section 502(a)(3) and
(g)(2) and Section 515 of the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1132(a)(3), (g)(2); 29 U.S.C. § 1145. A discussion of the