1 The following facts were presented to the court as undisputed for purposes of

this lawsuit. (See J.A. Ex. A).

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

BRICKLAYERS PENSION TRUST FUND

- METROPOLITAN AREA, et al.,

Plaintiffs,

v. Case No. 08-CV-15200

METRO JOINT SEALANTS, LLC, et al.,

Defendants,

/

ORDER GRANTING PLAINTIFFS’ MOTION FOR JUDGMENT AND DENYING

DEFENDANTS’ MOTION FOR JUDGMENT

Before the court are cross-motions for judgment. The court has reviewed the

briefs, and concludes that no hearing is necessary. See E.D. Mich. LR 7.1(e)(2). For

the reasons stated below, the court will deny Defendant’s motion and grant Plaintiffs’

motion.

I. STIPULATED FACTS1

1. On August 26, 2002, Defendant Metro Joint Sealants, LLC (herein referred to

singularly or collectively with Defendant Metro Joint Sealants of Michigan, Inc. as “MJS”

or the “Company”) by its President Timothy P. Frankland (“Frankland”), entered into a

collective bargaining agreement with Bricklayers’ and Masons’ Union Local 1 of

Michigan, Bricklayers and Allied Craftsworkers International Union of North America,

AFL-CIO (the “Bricklayers Union” or the “Union”). (J.A. Ex. 1, also referred to as “2002

Memorandum of Understanding”).

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2. The 2002 Memorandum of Understanding (“MOU”) by its terms adopts the

June 1, 1998 through May 31, 2002 Bricklayers Agreement.

3. MJS also signed a copy of the signature page of the June 1, 1998 through

May 31, 2002 Bricklayers Agreement. (J.A. Ex. 2 is the1998-2002 agreement plus the

signed signature page).

4. As a result of becoming a party to Exhibits 1 and 2, MJS became obligated to

make fringe benefit payments to Plaintiff Funds.

5. The 2002 MOU by its terms provides that MJS agrees to adopt and continue

in full force the 2002-2007 Bricklayers agreement which had not at that time been

reduced to written form.

6. On October 17, 2002, the Union mailed a copy of the 2002-2007 agreement

to MJS. (J.A. Ex. 3).

7. The 2002-2007 Bricklayers Agreement (J.A. Ex. 4) provides in part:

Article XIX Termination, Amendment, Reopening and Separability

Section 1. This Agreement shall remain in full force and effect until

May 31, 2007, and thereafter shall be renewed from year to year unless

either party hereto shall notify the other party, in writing and by

registered or certified mail, at least sixty days prior to May 31, 2007, or

any subsequent anniversary date, of its desire to change or terminate

this Agreement. Notice by the Union to the Employer-members of the

Labor-Management Cooperation Committee shall be notice to the

Employer and shall have the same force and effect as though it were

presented in writing directly to the Employer. The Employer agrees

that, unless he notifies the Union to the contrary by registered mail at

least sixty days prior to May 31, 2007, or any subsequent anniversary

date, the Employer will be bound by and adopt any Agreement reached

by the Labor Management Cooperation Committee during negotiations

following notice by the Union whether to the Employer directly or to the

Employer-members of the Labor-Management Cooperation Committee.

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8. In his deposition testimony, Frankland conceded that he was covered by the

Union contract until the time of the settlement payment and entry of the Satisfaction of

Judgment on May 4, 2006.

9. Following timely notice with regard to the 2002-2007 Bricklayers agreement,

the Union and the Labor-Management Cooperation Committee (“LMCC”) negotiated an

agreement effective by its terms from 2007-2010. (J.A. Ex. 5).

10. The LMCC and the Union extended the 2007-2010 collective bargaining

agreement to 2011. (J.A. Ex. 6).

11. MJS is not an employer member of the LMCC.

12. MJS did not send any notice specified in any of the collective bargaining

agreements described above.

13. For the purposes of this lawsuit only, Defendants admit the allegations set

forth in paragraph 4 of the complaint with respect to the alter ego status of Defendants

Metro Joint Sealants, LLC and Metro Joint Sealants of Michigan Inc.

14. MJS is an employer engaged in the construction industry which does interior

and exterior joint sealant work and below-grade waterproofing work primarily on new

construction.

15. During the period of time from August 2002 to present, MJS employed

employees who performed joint sealant and waterproofing work which is work covered

under the successive collective bargaining agreements between the Union and MJS or

the LMCC, including Exhibits 1, 2, 4, 5 and 6.

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16. MJS failed to file fringe benefit contribution reports and pay fringe benefit

contributions for employees performing covered work except as encompassed by the

Satisfaction of Judgment described below in paragraph 39.

17. At the request of MJS employees and Union members, the Union

filed a grievance on January 2, 2004 alleging that MJS and owner Timothy P. Frankland

failed to pay wages and fringe benefits to employees performing work covered under

the Union contract. (J.A. Ex. 7).

18. On November 21, 2003, an audit of MJS was conducted by Roger Dahl,

Trust Investigator for the Bricklayers Fringe Benefit Funds (plaintiffs herein) for the

period October 26, 2002 through October 31, 2003.

19. A copy of the November 21, 2003 audit was sent to MJS. The audit

concluded that MJS and Frankland owed $16,587.12 to the Funds for fringe benefit

contributions and liquidated damages. (J.A. Ex. 8).

20. The only audit performed by Plaintiff Funds as to MJS is that described

above in November 2003 by Roger Dahl.

21. In accordance with the contractual provisions of the 2002-2007 Bricklayers

Agreement, the grievance was referred to a “Labor Management Cooperation

Committee” established by the agreement. Pursuant to notice, a hearing was held on

the grievance by the LMCC which issued a decision on January 19, 2004 that found

MJS and Frankland guilty of the charges and ordered them to remedy their contractual

violations by paying certain amounts. (J.A. Ex. 7).

22. MJS and Frankland failed to pay as ordered by the LMCC and a lawsuit was

filed on March 24, 2004 seeking to confirm the arbitral award of the LMCC. (J.A. Ex. 7).

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23. A consent judgment was entered on June 29, 2004, approved as to form and

content by Frankland, individually and on behalf of MJS, which confirmed the January

19, 2004 award of the LMCC and required Frankland and MJS, inter alia to pay wages

totaling $11,293.70 to three employees and to pay $16,587.12 to the Bricklayers Fringe

Benefit Funds, plaintiffs herein. (J.A. Ex. 9).

24. On June 25, 2004, Frankland and Roger Dahl, Trust Investigator for the

Bricklayers Fringe Benefit Funds, signed a settlement agreement which provided that

Frankland would make three monthly payments of $250 and by October 15, 2004, he

would either pay the balance owing or make a new payment plan with the Bricklayers

Fringe Benefit Funds. (J.A. Ex. 10).

25. On July 1, 2004, attorney George Kruszewski of Sachs Waldman notified

Frankland and MJS in writing that pursuant to the agreement between MJS, Frankland

and Roger Dahl, he would take no steps to enforce the Judgment so long as they

complied with the payment plan that had been arranged. (J.A. Ex. 11).

26. Frankland and MJS failed to make any payments pursuant to the

June 25, 2004 settlement.

27. The June 29, 2004 judgment was referred by George Kruszewski of

Sachs Waldman to the law firm of Erman, Teicher, Miller, Zucker and Freedman (herein

“Erman Teicher”) for post-judgment collection efforts in January 2005.

28. On February 28, 2005, Frankland prepared a written settlement offer which

he transmitted to the law firm of Erman Teicher which proposed settling the case for a

total sum of $12,000 by April 21, 2005 to be paid in two equal installments of $6000,

one on March 21, 2005 and one on April 21, 2005. (J.A. Ex. 12).

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29. Frankland met with Robert Wine, an attorney from Erman Teicher

in March 2005 for a judgment debtor examination, at which Frankland’s settlement offer

was discussed. During this meeting, Robert Wine made notes on a copy of Frankland’s

settlement offer. These notes state: “Wants to drop out of union - cut ties after

settlement until 2007.” A copy of the original document on which Wine made notes is

included in the J.A. as Exhibit 13 and is also referred to herein as the “Wine

document.”

30. Wine testified that he would have passed the information he received from

Frankland on to the trustees of the Funds.

31. No payments were made by Frankland or MJS pursuant to the written

February 28, 2005 settlement offer.

32. On January 18, 2006, a letter was sent by attorney David M. Eisenberg of

Erman Teicher to MJS and Frankland which stated that a judgment existed to pay the

Bricklayers Fringe Benefit Funds the sum of $27,880.82, which had increased to

$28,816.33 with accrued interest. The letter further provided that the settlement offer of

the previous year of $12,000 in two installments of $6000 had been approved but that

MJS and Frankland had failed to make the payments. The letter stated that Frankland

and MJS had failed to comply with the settlement proposal and it was terminated and

that post-judgment collection efforts would be pursued. (J.A. Ex. 14).

33. The January 18, 2006 letter from Eisenberg to Frankland and MJS attached

a copy of Frankland’s February 28, 2005 settlement offer with attorney Wine’s

contemporaneous notes. (J.A. Ex. 13, the Wine document). The copy of the Wine

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7

document as it appears attached to the January 18, 2006 letter (J.A. Ex. 14), is referred

to herein as the “Eisenberg document.”

34. After January 18, 2006, attorney David Eisenberg and MJS and Frankland

engaged in settlement discussions. In March 2006 MJS and Frankland offered to pay

$12,000 to resolve the case. The Funds approved the offer if paid by April 14, 2006. On

March 17, 2006 Frankland signed an acknowledgment of the terms of this

offer. (J.A. Ex. 15).

35. At the time of this March 2006 settlement offer, Erman Teicher had served

garnishment proceedings upon a credit union account of MJS for the amount of

$2,457.62. On March 16, 2006, Frankland signed a statement permitting the credit

union to release the funds immediately, without a waiting period. (J.A. Ex. 16).

36. Under the acknowledged terms signed by Frankland, the garnished amount

would be offset against the settlement offer only if settlement was paid by April 14,

2006. If the settlement was not consummated by that date the garnishment amount

would be an offset only against the full judgment amount. (J.A. Ex. 15).

37. The expiration date of a March 17, 2006 settlement offer was extended from

April 14, 2006 to April 21, 2006. On April 7, 2006, Frankland signed an acknowledgment

of the terms of this offer. (J.A. Ex. 17).

38. On April 21, 2006, Frankland presented a check to Erman Teicher for

$9,542.38 which together with garnished proceeds of $2,457.62 totaled $12,000. (J.A.

Ex. 18).

39. On May 4, 2006 a Satisfaction of Judgment was entered in Case No.

04-71079. (J.A. Ex. 19).

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40. Chuck Kukawka is currently employed by the Union. He began his

employment in 1995 as a part-time employee. He became a full-time Union

representative in 2005.

41. Kukawka became the financial secretary/treasurer of the Union on

July 1, 2008.

42. From March to September 2008 Kukawka became a trustee of Plaintiff

Funds except that he has never been a trustee of either of the International Funds.

43. Each of Plaintiff Funds is governed by a board of trustees. Each board is

comprised of a number of trustees designated by employers and an equal number of

trustees designated by the Union.

44. All Union representative trustees of Plaintiffs (except the International Funds)

are also representatives of Local 1, Bricklayers.

45. Chuck Kukawka, also known as Chuck Kaye, was the Union representative

who initially signed up MJS as a union company in August 2002.

46. Kukawka graduated from Villanova University in 1984. He has a Bachelor of

Arts and majored in psychology and minored in philosophy.

47. In his deposition, Kukawka testified that an employer must be signatory to a

contract to make fringe benefit contributions to the Funds.

48. In approximately June 2006, at a Detroit Medical Center Children’s Hospital

project in Clinton Township, Frankland and his Project Manager and Estimator, Michael

Davis, had a brief conversation with Kukawka as they drove off the property through a

picket line in which Kukawka was participating.

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49. Kukawka asked Frankland how he was doing and Frankland responded that

he was doing well. Frankland said that he was doing better now that he was not covered

by the union agreement. Kukawka responded that he didn’t know that and would look

into it.

50. On this same day, Kukawka told other Union representatives who were

picketing at the DMC job site, Pete Accica, Paul Dunford and Tony Scavone, that he

(Kukawka) had been told that MJS was no longer covered by the Union contract.

51. After this conversation, Kukawka called Roger Dahl, Bricklayers Trust

Investigator, about MJS. Dahl told Kukawka that Frankland had expressed to him (Dahl)

that he wanted to get out of the agreement. Kukawka did no further checking on the

matter as he assumed, based on Frankland’s assertion and the conversation with Dahl,

that Frankland had acted in accordance with the stated intention.

52. Kukawka testified in his deposition that there was a Union staff meeting at

which MJS’s non-union status was discussed. Frankland and MJS were not aware of

this staff meeting. 

53. In 2006 or 2007 Kukawka told Kevin Ryan, a management trustee of the

Plaintiff Bricklayers Pension Fund and Holiday Trust Fund, that MJS was non-union.

Frankland and MJS were not aware of this conversation.

54. The Union has a record of the 2002-2007 contract having been sent to MJS.

(J.A. Ex. 3).

55. The Union has no record of the 2007-2010 contract being sent to MJS. For

an unknown reason, the Union did not send a copy of the 2007-2010 contract to

multiple employers.

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10

56. The Union has no record of the 2007-2011 contract having been sent to

MJS. 

57. The Union maintains a computer system data base of contracts and

contractors.

58. On January 22, 2008 Kukawka made an entry on the Union’s computer

system data base stating that the Company was “nonunion.” (J.A. Ex. 20).

59. Sometime between September 5, 2008 and October 23, 2009, Kukawka

made a correction to the Union’s computer system data base, changing the recorded

date MJS became a signatory to the Union contract from August 29, 2002 (an incorrect

date originally entered into the system by a secretary) to August 26, 2002 (the

correct date). (J.A. Exs. 21 and 22).

60. Although Kukawka changed the entry of the date of the contract, he did not

change the entry indicating that MJS was non-union. At the time that Kukawka made

the correction described above in paragraph 59, Kukawka was aware that the issue of

the union status of MJS was the subject of a legal dispute.

61. The Union maintains files in which it keeps copies of signed contracts.

62. In about August 2008, in a conversation at the Union, Kukawka told Michael

Tollis, Vice President of Baro Contracting, that MJS was non-union and that Baro

should be using union contractors and not be using MJS as subcontractor on the

Grosse Pointe South High School project on which MJS had already performed work.

63. Mark King, Union President, was present during the conversation described

in paragraph 62. At this time, King was a trustee of some of the Plaintiff Funds.

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64. Frankland received a letter from Tollis verifying information that Tollis had

provided to Frankland. (J.A. Ex. 23).

65. Tollis told Frankland that Kukawka had told him that MJS was non-union.

66. In his deposition, Kukawka testified he told Tollis that under their labor

agreement, Baro was not supposed to subcontract to nonunion contractors.

67. In August 2008, Kukawka told Ed Laughhunn and Jeff Findley, management

representatives of Simone Contracting, that he believed or understood that MJS was a

non-union contractor and that they should be using a union contractor.

68. Frankland requested and received an e-mail from Laughhunn concerning the

conversation with Kukawka. (J.A. Ex. 24).

69. When Kukawka made the statements described above to Tollis of Baro

Contracting and Laughhunn and Findley of Simone Contracting, he had been appointed

a trustee of all Plaintiff Funds except the Health and Welfare Fund (to which he was

appointed in September 2008), and the International Funds, of which he was

never a trustee.

70. On September 5, 2008, Frankland sent a letter to the Union stating, inter

alia, that MJS had previously terminated its union participation and informing it that it

was contemplating joining the UAW. (J.A. Ex. 25).

71. On September 9, 2009, attorney George Kruszewski of Sachs Waldman,

responded to Frankland’s September 5, 2008 letter stating that it was the position of the

Union and the Funds that MJS was bound to the 2002-2007 Bricklayers and 2007-2010

successor contract by virtue of its signing of the 2002 agreement and its failure to

provide notice of termination. (J.A. Ex. 26).

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72. When Kukawka received a copy of Kruszewski’s September 9, 2008 letter,

he realized that he had been in error as to MJS’s status. After that date, Kukawka made

no further statements to contractors or their representatives that MJS is or was

non-union.

73. On September 11, 2008, Stefansky, Holloway & Nichols, payroll auditors for

the Bricklayers Funds, requested information from Frankland and MJS in order to

perform an audit of fringe benefit contributions made to the Funds. (J.A. Ex. 27).

74. On September 24, 2008, Frankland responded to Stefansy [sic] Holloway &

Nichols, in writing. (J.A. Ex. 28). Enclosed with this letter as enclosure 2 was a

document similar to but not identical to the Wine document. 

75. The enclosed document differed from that created by Wine, in that

Wine’s handwritten words “until 2007" are missing. The remaining Wine notes are

circled and to the left appear the words “Written by Mr. Erman” with an arrow pointing to

the circled words. The circling and words “Written by Mr. Erman” were written by

Frankland’s father who assisted him in responding to correspondence regarding the

Union. This version of the February 28, 2005 settlement offer is referred to herein as

the “Frankland document.” (J.A. Ex. 29).

76. On October 10, 2008, Frankland and MJS sent a letter to Stefansy [sic]

Holloway & Nichols stating, inter alia, that MJS is not in the Union. (J.A. Ex. 30). This

letter enclosed a copy of the Frankland document described above in paragraph 75 and

which is Exhibit 29.

77. A copy of Frankland’s October 10, 2008 letter with an attachment letter was

faxed to attorney George Kruszewski, of Sachs Waldman. (J.A. Ex. 31).

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13

78. On October 13, 2008, attorney George Kruszewski responded to Frankland’s

October 10, 2008 letter, rejecting Frankland’s contention that it was not bound by the

Union’s contract. (J.A. Ex. 32).

79. On October 21, 2008, Frankland and MJS sent a letter to Sachs Waldman

regarding the Funds’ request for a payroll audit. (J.A. Ex. 33).

80. The document described above in paragraph 33 as the Eisenberg document

(J.A. Ex. 14) is a copy of and was copied directly from the original Wine document (J.A.

Ex. 13).

81. The document described above in paragraph 75 as the Frankland document

(J.A. Ex. 29), except with reference to certain additions and omissions, is a copy of the

Eisenberg document (J.A. Ex. 14).

82. From an examination and comparison of the marks on the copies of the

Eisenberg document (J.A. Ex. 14) and the Frankland document (J.A. Ex. 29) with the

original Wine document (J.A. Ex. 13), and conclusions based on common knowledge of

degradation that occurs during the copying process, it appears that the Frankland

document (J.A. Ex. 29), before additions and omissions, was made from the Eisenberg

document (J.A. Ex. 14).

83. It also appears that Exhibit 29, the Frankland document (with additions and

omissions), is a later generation copy of the Eisenberg document.

84. The handwritten notes on the February 28, 2005 Frankland settlement offer

described above in paragraph 29 were written by attorney Robert Wine, then employed

by Erman Teicher.

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2The parties rely on the standard found at Federal Rule of Civil Procedure 56,

although the court originally contemplated these motions as trials on the paper. 

Nonetheless, whether cast as a trial on the papers or a Rule 56 motion, the court’s

resolution of these motions would remain the same. 

14

85. In his deposition on September 15, 2009, Frankland initially identified the

person who wrote these notes as David Eisenberg, who was not employed by Erman

Teicher until January 2006. Frankland gave a physical description of the person with

whom he met partially consistent with that of Eisenberg.

86. In his deposition on October 26, 2009, Frankland, after meeting Robert Wine

and hearing his testimony that the written notes were his handwriting, stated that he did

not recall meeting with Robert Wine, but did recall meeting with a person whose

physical description was consistent with that of David Eisenberg.

87. Frankland never met with attorney Earle Erman of Erman Teicher.

II. STANDARD2

Under Federal Rule of Civil Procedure 56, summary judgment is proper when

there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). “In deciding a motion for summary

judgment, the court must view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United

States, 342 F.3d 493, 497 (6th Cir. 2003). “Where the moving party has carried its

burden of showing that the pleadings, depositions, answers to interrogatories,

admissions and affidavits in the record, construed favorably to the non-moving party, do

not raise a genuine issue of material fact for trial, entry of summary judgment is

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15

appropriate.” Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987) (citing Celotex

Corp. v. Catrett, 477 U.S. 317 (1986)).

The court does not weigh the evidence to determine the truth of the matter, but

rather, to determine if the evidence produced creates a genuine issue for trial. Sagan,

342 F.3d at 497 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 

The moving party discharges its burden by “‘showing’ –that is, pointing out to the district

court– that there is an absence of evidence to support the nonmoving party’s case.”

Horton v. Potter, 369 F.3d 906, 909 (2004) (citing Celotex, 477 U.S. at 325). The

burden then shifts to the nonmoving party, who “must do more than simply show that

there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must put forth

enough evidence to show that there exists “a genuine issue for trial.” Horton, 369 F.3d

at 909 (citing Matsushita, 475 U.S. at 587 (1986)). Summary judgment is not

appropriate when “the evidence presents a sufficient disagreement to require

submission to a jury.” Anderson, 477 U.S. at 251-52 (1986).

III. DISCUSSION

A. Use of a Termination Defense Under Section 515 of ERISA

Defendant contends that it terminated its collective bargaining agreement with

Bricklayers Union, and is thereby relieved of any contractual obligations arising out of

the 2007-2010 agreement, as extended to 2011. Plaintiffs maintain that Defendant did

not terminate the contract and that therefore, due to the contract’s evergreen clause,

Defendant is presently bound to the agreement. In addition, Plaintiffs assert that

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Section 515 of the Employee Retirement Income Security Act (“ERISA”) limits the types

of defenses available to Defendant. 29 U.S.C. § 1145. 

Plaintiff Funds stands in the position of a third-party beneficiary to the 2002

Memorandum of Understanding between Defendant MJS and Bricklayers Union. See

Sw. Adm’rs. Inc. v. Rozay’s Transfer, 791 F.2d 769, 773 (9th Cir. 1986). Under

traditional contract law, a third-party beneficiary is generally subject to any contract

defense available to the promisor against the promisee if the promisee were to sue on

the contract. Id. (citing J. Calamari & J. Perillo, The Law of Contracts § 17-8, at 623-24

(2d ed. 1977)). “However, a collective bargaining agreement is not a typical third-party

beneficiary contract.” Id. (citing Lewis v. Benedict Coal Corp., 361 U.S. 459, 468

(1960)). As the Seventh Circuit explained:

Multiemployer plans are defined-contribution in, defined-benefit out. Once

they promise a level of benefits to employees, they must pay even if the

contributions they expected to receive do not materialize - perhaps

because employers go broke, perhaps because they are deadbeats,

perhaps because they have a defense to the formation of the contract. If

some employers do not pay, others must make up the difference in higher

contributions, or the workers will receive less than was promised. Costs of

tracking down reneging employers and litigating also come out of money

available to pay benefits. The more complex the litigation, the more the

plan must spend. Litigation involving conversations between employers

and local union officials -conversations to which plans are not privy-may

be especially costly, and hold out especially great prospects of coming

away empty-handed.

Cent. States, Se. & Sw. Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d

1148, 1151 (7th Cir. 1989) (internal citation omitted). 

Due to the expansive nature of collective bargaining agreements and their

potential to create costly and complex litigation, Congress enacted § 515 of ERISA to

allow “trustees of [multiemployer] plans to recover delinquent contributions efficaciously,

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17

and without regard to issues which might arise under labor-management relations law” 

Gerber Truck, 870 F.2d at 1153-54 (quoting 126 Cong.Rec. 23039 (1980) (remarks by

Rep. Thompson)); see also Bakery & Confectionary Union & Indus. Int’l. Health Benefits

& Pension Funds v. New Bakery Co. of Ohio, 133 F.3d 955, 959 (6th Cir. 1998) (same). 

Under ERISA § 515:

Every employer who is obligated to make contributions to a multiemployer

plan under the terms of the plan or under the terms of a collectively

bargained agreement shall, to the extent not inconsistent with law, make

such contributions in accordance with the terms and conditions of such

plan or agreement.

29 U.S.C. § 1145 .

Numerous court have interpreted ERISA § 515 as protecting the financial stability

of funds through limiting potential contract defenses available to employers in actions to

recover delinquent contributions. Louisiana Bricklayers & Trowel Trades Pension Fund

& Welfare Fund v. Alfred Miller Gen. Mansonry Contracting Co., 157 F.3d 404, 408-09

(5th Cir. 1998); see also Nw. Ohio Adm’rs. v. Walcher & Fox, Inc., 270 F.3d 1018, 1025

(6th Cir. 2001); New Bakery, 133 F.3d at 959. As the Sixth Circuit explained in New

Bakery:

Because, under section 515, multiemployer plans are entitled to rely on

the literal terms of written commitments between the plan, the employer,

and the union, the actual intent of and understandings between the

contracting parties are immaterial. The fund thus stands much like a

holder in due course in commercial law who is entitled to enforce the

writing without regard to understandings or defenses applicable to the

original parties. By allowing multiemployer funds to enforce the literal

terms of an employer’s commitment, section 515 increases the reliability

of their income streams, reduces the cost and delay associated with

collection actions, and reduces or eliminates the cost of monitoring the

formation of collective bargaining agreements. 

133 F.3d at 959 (internal quotations and citations omitted). 

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Reasoning similar to that in New Bakery has been applied to nullify reliance on

oral modifications as a defense for failure to comply with a written agreement. See

Gerber Truck, 870 F.2d at 1156; see also Central States, Southeast and Southwest

Areas Pension Fund v. Kroger Co., No. No. 93 C 3669, 1998 WL 128715, *6 (N.D.Ill.

Mar. 17 1998) (“Ordinarily, employers cannot use oral agreements as a defense to a

pension fund’s claim for lack of contributions.”). In Gerber Truck, an employer only

contributed to the pension funds on behalf of three specific employees rather than on

behalf of all of its employees as the written terms of the contract required. 870 F.2d at

1150. Despite the employer’s argument that it had orally agreed with the union not to

enforce the written terms of the contract, the court reasoned that the funds were not

required to examine potential side agreements and oral modifications when determining

an employer’s contractual obligations. Id. at 1154-56.

The Sixth Circuit endorsed Gerber Truck’s policy of relying solely on the written

terms of the contract, rather than looking to side agreements, in Walcher & Fox. See

Walcher & Fox, 270 F.3d at 1025. In Walcher & Fox, an employer argued that

handwritten notations on a pre-printed agreement were valid modifications of the

contract. 270 F.3d at 1022. However, since the written contract was unambiguous and

the parties made no attempt to manifest their intended modifications outside of the

“cursory and non-specific notes,” the modifications were not enforceable. Id. at 1025. 

Echoing Gerber Truck, the court reasoned that fund administrators are not required “to

read the minds of contracting parties; rather, administrators may rely on the

unambiguous terms of the writing.” Id. (citing New Bakery, 133 F.3d at 959 (holding that

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the funds are entitled to rely on and enforce the express terms of the collective

bargaining agreement in determining an employer’s contractual obligations)). 

This is not to say that courts have extinguished all potential defenses in actions

to recover delinquent contributions under ERISA § 515. See Alfred Miller, 157 F.3d at

408. The following defenses are recognized in all circuit courts having analyzed the

issues: (1) illegality of the contract or contributions; (2) contract is void ab initio e.g., by

fraud in the execution; and (3) decertification of the union. Id. (citing Agathos v. Startlite

Motel, 977 F.2d 1500, 1505 (3d Cir. 1992)). Further, employee benefit funds “are not

entitled to enforce a nonexistent contractual obligation.” Plumbers & Pipefitters Local

Union No. 572 Health & Welfare Fund v. A & H Mech. Contractors, Inc., 100 F. App’x

396, 402-03 (6th Cir. 2004) (quoting Devito v. Hempstead China Shop, Inc., 38 F.3d

651, 654 (2d Cir. 1994). In A & H Mechanical, the Sixth Circuit embraced the validity of

a termination defense by stating:

A-H’s termination-of-the contract contention fits comfortably within these

exceptions of the general rule against asserting contract defenses in an

ERISA § 515 action. Instead of a precluded contract “defense,” A-H’s

termination argument goes to the question whether a contractual promise

to contribute exists in the first instance. Section 515 after all was designed

only to preclude “complex litigation concerning claims and defenses

unrelated to the employer’s promise and the plans’ entitlement to the

contributions.” A-H’s claim that it terminated the relevant agreement

obligations is hardly “unrelated” to its alleged promise to make

contributions on behalf of its employees. 

100 F. App’x at 403 (quoting Gerber Truck, 870 F.2d at 1153) (internal citations

omitted). 

Although lack of an existing contract is a permitted defense under ERISA § 515,

the defense is severely limited due to the stringent standards in place for terminating a

collective bargaining agreement. See Trs. of B.A.C. Local 32 Ins. Fund v. Fantin

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Enters., Inc., 163 F.3d 965, 969 (6th Cir. 1998). In Fantin, the Sixth Circuit elaborated

on these standards by stating: 

Unless ambiguous, a collective bargaining agreement is limited to the

language contained in its four corners. See Baldwin-Montrose Chemical

Co. v. International Union, United Rubber, Cork, Linoleum and Plastic

Workers of America, AFL-CIO, 383 F.2d 796, 798 (6th Cir. 1967). The

termination clause in the 1991 agreement provides clear, unambiguous

terms upon which the contract may be canceled: through written notice by

either party of their intent to terminate it. . . . Indeed, “[w]hen such clear

and specific language in a labor agreement is at issue, federal courts are

uniform in their strict interpretation of such language.” Irwin v. Carpenters

Health & Welfare Trust Fund for Cal., 745 F.2d 553, 556 (9th Cir. 1984). 

163 F.3d at 969. In addition, where a collective bargaining agreement requires written

notice of termination, oral repudiation of the contract, absent written notice, is not

sufficient to establish termination. See Gerber Truck, 870 F.2d at 1156. In Gerber

Truck, an employer stated it would not sign another agreement with the union, however

the court found this attempt to terminate the contract ineffective because the agreement

required repudiation of the contract through written notice of termination not oral

statements. Id.

Furthermore, in order to successfully terminate a collective bargaining agreement

an employer’s notice of termination must be clear and explicit. Alfred Miller, 157 F.3d at

409. In Alfred Miller, an employer ceased contributing benefits to the funds a month

after sending a letter to the union stating, “for the immediate future we will continue to

make monthly contributions to our local benefit funds . . . If there is a change in our

position, we will notify you in another letter.” Id. at 406. The court reasoned that the

letter alone, while suggesting possible changes in the future, did not unequivocally

indicate an intent to terminate the contract. Id. at 409. Discussing the limited nature of

a termination defense the court stated:

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Although a district court may consider the significance of a purported

termination, the court’s examination must end following a superficial

inquiry into the termination’s effect. Thus, a court may determine whether

an attempted termination was timely or not. Further, a court may review

an alleged termination to determine if the requisite intent has been

conveyed. However, if the issue of termination cannot be resolved through

cursory review, the defense to a section 515 action will not succeed. 

Id. at 409, n.12 (internal citations omitted). Following a “superficial inquiry” and “cursory

review,” the court found the employer’s letter to be ambiguous, untimely, and in no

measure clear and explicit; thus, the employer remained bound to the contract. Id. at

409.

The Sixth Circuit adopted the principle of Alfred Miller, which allows a cursory

review of termination disputes, in A & H Mechanical. The Sixth Circuit stated that “[i]n

our view, the Fifth Circuit’s decision sensibly balances the competing interests in

avoiding complex litigation that starves a fund’s necessary contributions and ensuring

that the employer has a legitimate contractual obligation to make employee

contributions.” A & H Mech., 100 F. App’x at 403. The Sixth Circuit recently reaffirmed

its reliance on this reasoning in Laborers Pension Trust Fund Detroit And Vicinity v.

Interior Exterior Specialists Construction Group, Inc., No. 08-2526, 2010 WL 3521920,

(6th Cir. Sep. 8, 2010). The Sixth Circuit reiterated that a termination defense is

allowed, so long as “it is evident upon ‘a cursory review of the parties’ actions’ that the

contract has been terminated” and “provid[ing] the inquiry is ‘superficial.’” Id. at *4

(citations omitted). The circuit also stressed that, in conducting this inquiry, the court is

not limited to the four corners of the underlying contract but may make a cursory or

superficial review of the parties actions as well. Id.

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Thus, the Sixth Circuit permits the use of a termination defense in actions to

recover delinquent funds under ERISA § 515. See A & H Mech., 100 F. App’x at 403. 

However, such defense is subject to certain limitations. Id. Consequently, Defendant

may present a termination defense provided that a “superficial inquiry” or “cursory

review” into the record establishes that Defendant terminated its collective bargaining

agreement in compliance with the standards adopted in the Sixth Circuit. Alfred Miller,

157 F.3d at 409; A & H Mech., 100 F. App’x at 403; see also Interior Exterior Specialists

Construction Group, Inc., 2010 WL 3521920 at *4. If a superficial inquiry into the record

fails to show clear and explicit termination of the contract, Defendant’s termination

defense will fail as a matter of law. See Alfred Miller, 157 F.3d at 409.

B. APPLICATION OF THE SUPERFICIAL INQUIRY

The 2002-2007 collective bargaining agreement between Defendant MJS and

Bricklayers Union sets forth clear requirements for terminating the contract. The

agreement in part provides: 

Article XIX Termination, Amendment, Reopening and Separability

Section 1. This Agreement shall remain in full force and effect until

May 31, 2007, and thereafter shall be renewed from year to year unless

either party hereto shall notify the other party, in writing and by

registered or certified mail, at least sixty days prior to May 31, 2007, or

any subsequent anniversary date, of its desire to change or terminate

this Agreement. Notice by the Union to the Employer-members of the

Labor-Management Cooperation Committee shall be notice to the

Employer and shall have the same force and effect as though it were

presented in writing directly to the Employer. The Employer agrees

that, unless he notifies the Union to the contrary by registered mail at

least sixty days prior to May 31, 2007, or any subsequent anniversary

date, the Employer will be bound by and adopt any Agreement reached

by the Labor Management Cooperation Committee during negotiations

following notice by the Union whether to the Employer directly or to the

Employer-members of the Labor-Management Cooperation Committee.

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(J.A. Ex. 4) (emphasis added). Plaintiff Funds alleges that MJS is presently bound to

the 2007-2010 collective bargaining agreement, as extended to 2011, because of the

automatic renewal, or “evergreen,” clause in the contract. Both the Supreme Court and

the Sixth Circuit have expressly held that evergreen clauses are legally valid. Fantin,

163 F.3d at 968 (citing E. Enters. v. Apfel, 524 U.S. 498 (1998)). As the Sixth Circuit

explained, “[w]hen a contract is renewed via the operation of an evergreen clause, all of

the attendant, contractual obligations naturally continue for the period of renewal.” 

Fantin, 163 F.3d at 968-69. 

MJS contends it is not presently bound to its contract with Bricklayers Union

because the Union has no records of sending MJS the 2007-2010 nor the 2007-2011

agreement. However, due to the evergreen clause in the 2002-2007 collective

bargaining agreement between MJS and Bricklayers Union, the contract was

automatically renewed in 2007, regardless of MJS not receiving a copy of the contract. 

See Fantin, 163 F.3d at 968-69; see also Trs. of B.A.C. Local 32 Ins. Fund v. Silveri, 78

F.Supp.2d 670, 678 (E.D.Mich. 2000). Because the contract was automatically

renewed in 2007, MJS is presently bound to the agreement unless it terminated the

agreement prior to its automatic renewal. 

The 2002-2007 agreement between Defendant and Bricklayers Union contains

an express provision requiring written notice of termination by registered or certified mail

60 days prior to May 31, 2007. MJS concedes that despite this explicit requirement, it

failed to send Bricklayers Union written notice of termination. Nevertheless, MJS asserts

that a superficial inquiry into the record establishes that MJS terminated its contract with

Bricklayers Union through oral repudiation or alternatively, through the conduct of

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Bricklayers Union and the Funds. However, MJS fails to provide any authority, nor is

there any authority, supporting either of its “novel” defenses, as Plaintiff Funds aptly

describes them. 

For an illustration of a superficial inquiry establishing termination of contract, MJS

relies on the previously discussed case, A & H Mechanical. 100 F. App’x at 403. In A &

H Mechanical, the court held that the employer’s termination defense presented a

“classically straightforward inquiry into whether the contract still existed.” Id. Because

the employer in A & H Mechanical wrote a letter of termination to the union in

compliance with its contract, the superficial inquiry consisted solely of reading the

termination letter. Id. at 402-03. In contrast, MJS has not provided a notice of

termination for analysis. Instead, MJS is attempting to qualify a collection of thirty four

exhibits concerning ambiguous notations, brief conversations, and potentially mistaken

beliefs as a superficial inquiry comparable to the analysis of a single termination letter. 

Id. The inquiry MJS proposes is in no way a “classically straightforward inquiry”

comparable to that in A & H Mechanical. Id. 

Similarly, Defendant’s reliance on Sheet Metal Workers’ International Ass’n.,

Local 206 v. West Coast Sheet Metal Co. is unfounded as that case is readily

distinguishable from the case at hand. 954 F.2d 1506 (9th Cir. 1992). In Sheet Metal,

the court reasoned that an employer’s contracts with both a union and the

accompanying funds were terminated following the decertification of the union. Id. at

1509 Unlike in Sheet Metal, a superficial inquiry into the record does not establish that

Bricklayers Union is by any measure decertified. See id. In addition, the facts in

Laborers Health & Welfare Trust Fund for Northern California v. Leslie G. Delbon Co.,

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Inc., on which MJS also relies, are distinguishable because that case involves an

analysis of an employer’s termination letter. 199 F.3d 1109, 1110-11 (9th Cir. 2000). 

As previously indicated, MJS has not provided any such letter for analysis. See id.

As set forth in Gerber Truck, oral repudiation without written notice of termination

is not a permissible method for terminating a collective bargaining agreement. 870 F.2d

at 1156; see also Fantin, 163 F.3d at 969. However, in an attempt to validate its oral

repudiation defense, MJS relies on the unpublished decision Central States, Southeast

and Southwest Areas Pension Fund v. General Materials, Inc. No. 04-73593, 2007 WL

496696, at *4 (E.D.Mich. Feb. 12, 2007), aff’d on other grounds, 535 F.3d 506 (6th Cir.

2008). In General Materials, an employer claimed that it sent written notice of

termination to the union and formed an oral agreement with the union allowing the

employer to contribute to the funds on behalf of only two employees. Gen. Materials,

2007 WL 496696, at *1. However, the employer failed to send similar notice to the

funds to terminate its accompanying participation agreement. Id. When the funds later

took action to collect from the employer, the court found in favor of the employer, based

on the behavior of the parties as well as the employer’s oral agreement with the union

and the delayed action of the funds in attempting to collect contributions. Id. at *4.

MJS contends that Timothy Frankland, President of MJS, orally terminated MJS’s

contract with Bricklayers Union in March of 2005 during a meeting with Robert Wine,

attorney from Erman Teicher. On a document referred to as the “Wine document,”

Wine wrote “wants to drop out of union - cut ties after settlement until 2007.” While a

generous reading of these handwritten notations demonstrates Frankland’s desire to

withdrawal from the contract, a mere intent, absent further compliance with the

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contract’s termination provision, falls short of the required “clear and explicit” notice of

termination set forth in Alfred Miller. 157 F.3d at 409; see Gerber Truck, 870 F.2d at

1156; see also Walcher & Fox, 270 F.3d at 1025 (holding that handwritten notations on

a printed agreement were not valid modifications of the contract where the parties failed

to further manifest their intentions). 

The key difference between General Materials and the case at hand is the

existence of written notice of termination. 2007 WL 496696, at *1. MJS is attempting to

apply the reasoning of General Materials, where a defense of oral repudiation was

collaborated with written notice of termination to the union, to Defendant’s oral

repudiation defense where no such letter of termination exists. Id. Even if the facts in

General Materials were not distinguishable, expanding the reasoning of General

Materials to include Defendant’s defense would run contrary to the Sixth Circuit’s

subsequent review of General Materials. See Gen. Materials, 535 F.3d at 509. 

In affirming General Materials, the Sixth Circuit did not analyze any oral

agreements or conduct of the parties; rather it reasoned that the collective bargaining

agreement and participation agreement went hand in hand, thus when the collective

bargaining agreement expired, the participation agreement also expired. Gen.

Materials, 535 F.3d at 509. As a result of MJS’s failure to comply with the termination

requirements of its contract and the lack of authority supporting MJS’s oral repudiation

defense, expanding the reasoning of General Materials to include MJS’s defense is

unreasonable; thus MJS’s oral repudiation defense fails as a matter of law. See Gen.

Materials, 2007 WL 496696, at *4. 

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Additionally, MJS asserts that after Frankland’s meeting with Wine, neither the

Funds nor the Union took steps to reaffirm MJS’s contractual obligations, thereby

acquiescing MJS’s oral repudiation. However, even setting aside the ample amount of

authority invalidating oral repudiation as a substitute for complying with a contract’s

termination provision, the record fails to establish that the inaction by the Union or the

Funds translates into the parties accepting MJS’s oral repudiation. Although neither the

Funds nor the Union took steps to confirm MJS’s continued acceptance of the contract,

it was not their responsibility to do so. Moreover, no evidence purported that MJS did

anything other than express its desire to withdrawal from the contract, and because

MJS failed to send written notice of termination to manifest its desire, neither party had

reason to confirm MJS’s status. 

Alternatively, MJS contends that the conduct of both Bricklayers Union and the

Funds following Frankland’s conversation with Chuck Kukawka, a Union representative,

establishes that the contract was terminated. Where a collective bargaining agreement

contains a termination clause requiring written notice of termination and the employer

fails to send such notice, the conduct of the union is not sufficient to terminate the

contract. Silveri, 78 F.Supp.2d at 678. In Silveri, an employer told union

representatives who visited the employer’s job site that the employer no longer had a

contract with the union. 78 F.Supp.2d at 678. Following this conversation, the union

protested against the employer as “non-union contractors.” Id. Despite the union’s

conduct, the court reasoned that because the employer’s contract contained a provision

for formal notice of termination, compliance with such provision was required to

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terminate the contract. Id. Therefore, the employer remained contractually obligated to

contributed to the funds. Id. 

Silveri presents circumstances similar to those surrounding MJS’s conduct

defense. See id. Analogous to the employer in Silveri, Frankland, President of MJS,

told Kukawka, a Bricklayers Union representative, that MJS was no longer bound by its

Union contract. See id. Subsequently, Kukawka acted on this information by telling

other union representatives, a trustee of the funds, and two contractors that MJS was

non-union. However, like the employer in Silveri, MJS never made any attempt to

comply with the contract’s provision for written notice of termination. 78 F.Supp.2d at

678. Similar reasoning follows, the collective bargaining agreement between MJS and

Bricklayers Union contains explicit terms on how to terminate the contract. Neither

expressing a strong desire to withdrawal from the contract nor actions by the Union are

enough to override the termination clause of the contract. See Fantin, 163 F.3d at 969

(holding that where a collective bargaining agreements provides clear, unambiguous

terms upon which the contract may be canceled, “the federal courts are uniform in their

strict interpretation of such language”). Therefore, MJS’s defense of termination based

on conduct by the Union also fails as it is not permissible by law. See id.; see also

Silveri, 78 F.Supp.2d at 678. 

Lastly, MJS contends that a superficial inquiry into the following three events

establishes that MJS terminated its contract. First, in January of 2008, Kukawka entered

into the Union’s computer system that MJS was “non-union”; second, that in August of

2008, while in the presence of Mark King, President of Bricklayers Union, Kukawka told

Baro Contracting that MJS was non-union; and third, in August of 2008, Kukawka

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informed Simone Contracting that MJS was non-union. However, none of these actions

occurred until 2008, long after the “60 days prior to May 31, 2007" deadline passed.

Therefore, even if MJS acted under the mistaken belief that Kukawka’s conduct could

serve as a substitute for written notice of termination, the record does not give rise to

the inference that MJS reasonably believed the contract was terminated before MJS

failed to send written notice and the contract automatically renewed. 

Furthermore, Kukawka’s conduct, absent MJS’s compliance with the contract’s

termination provision, fails to relieve MJS of its responsibility to provide “clear and

explicit” notice of termination to Bricklayers Union. Alfred Miller, 157 F.3d at 409; see

Silveri, 78 F.Supp.2d at 678. Consequently, Kukawka’s potential status as an agent of

either the Union or the Funds is immaterial in establishing whether MJS is bound to its

collective bargaining agreement because MJS failed to send the required written notice

of termination. 

While Defendant is entitled to raise its termination of contract defense, a

superficial inquiry into the record fails to establish that MJS terminated its collective

bargaining agreement with Bricklayers Union. Although the record provides ample

evidence as to the presence of ambivalent conversations, handwritten notations, and

various actions by all parties involved, an analysis of such evidence falls well outside

the scope of the “superficial inquiry” or “cursory review” permitted under Section 515 of

ERISA in an action to recover delinquent contributions. Alfred Miller, 157 F.3d at 409;

see A & H Mech., 100 F. App’x at 402-03. Therefore, summary judgement in favor of

Plaintiffs is warranted and Defendant is bound to the 2007-2010 collective bargaining

agreement with Bricklayers Union, as extended to 2011.

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IV. CONCLUSION

IT IS ORDERED that Plaintiffs’ “Motion for Judgment on Stipulated Facts, or in

the Alternative, Summary Judgment” [Dkt. #19] is GRANTED and Defendant’s “CrossMotion for Judgment on the Pleadings” [Dkt. #20] is DENIED. 

The court will enter a standard judgment in favor of Plaintiffs, which may be

substituted by an amended judgment, agreed upon as to form, and presented to the

court by October 14, 2010. In the event the parties cannot agree to the form of

judgment, Plaintiffs shall file their motion for amended judgment by October 21, 2010,

and Defendant shall file its response by October 28, 2010. 

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: September 28, 2010

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, September 28, 2010, by electronic and/or ordinary mail.

 S/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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