UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TRUSTEES OF OUTSTATE

MICHIGAN TROWEL TRADES

HEALTH & WELFARE FUND, et al., 

Plaintiffs,

Case No. 09-CV-12856

vs.

HON. GEORGE CARAM STEEH

ABBOTT CONSTRUCTION, INC.,

Defendant.

_____________________________/

ORDER DENYING PLAINTIFFS’

MOTION FOR SUMMARY JUDGMENT [DOC. 12]

The plaintiffs are trustees of fringe benefit funds established through collective

bargaining and maintained and administered pursuant to Section 302 of the Labor

Management Relations Act of 1947 (“LMRA”), 29 USC §186, and the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 USC §1001, et seq. Plaintiffs

have brought this action against defendant Abbott Construction to collect fringe benefit

contributions plus statutory and other damages allegedly owing pursuant to the

collective bargaining agreement (“CBA”), by which plaintiffs contend that Abbott

Construction is bound. Plaintiffs seek to obtain payment of an indebtedness as set forth

on an audit, and to compel cooperation with an updated audit. Plaintiffs filed a motion

for summary judgment, and the court heard oral argument on the motion on March 17,

2010. 
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FACTUAL BACKGROUND

On June 21, 2001, Bruce Abbott, defendant’s president, signed an acceptance of

agreement by which Abbott Construction became bound to the collective bargaining

agreement entered into by the Labor Relations Division of the Michigan Road Builders

Association (“Road Builders Association”) and the Cement Masons’ International

Association (“CMIA”) of the United States and Canada (“initial CBA”). The initial CBA

was in effect from June 1, 1998 to June 1, 2003. Abbott continued to be bound by the

initial CBA, when it was renegotiated to cover the period June 1, 2003 to June 1, 2008. 

Each version of the initial CBA contained a termination clause which was not invoked by

Abbott.

Under the terms of the Road Builders Agreement and the trust agreements

incorporated therein, Abbott Construction became obligated to make fringe benefit

contributions to the trust funds with respect to covered work performed by, and wages

paid to, employees of Abbott Construction, and to submit their books and records for

periodic inspection and audit.

On February 1, 2005, the Road Builders Association merged with the Associated

Underground Contractors. On this date, the Labor Relations Division of the Michigan

Infrastructure & Transportation Association (“MITA”) was substituted as the contracting

party in place of the Road Builders Association. (Glenn Bukoski Affidavit; Exhibit B,

Substitution Agreement).

The parties disagree about whether Abbott became bound to a subsequent CBA

between the Labor Relations Division of MITA and the CMIA (“subsequent CBA”). 

There is no evidence that Abbott received notice of the merger and substitution of
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associations. Nor is there any evidence that Abbott gave a power of attorney on its

behalf to assent to such substitution. 

Plaintiffs filed this litigation pursuant to LMRA and ERISA for breach of the fringe

benefit provisions of the initial CBA and subsequent CBA, to obtain judgment against

Abbott Construction incorporating the balance owing on an audited indebtedness for the

period of April 2007 through September 2009 plus statutory and other damages,

requiring Abbott to cooperate with an updated audit, and awarding plaintiffs additional

amounts revealed by the updated audit, plus statutory and other damages. An audit

revealed an indebtedness of $53,251.24 for the period of April 2007 through September

2009. This number breaks down to $47,104.60 in contributions, $4,710.46 in liquidated

damages resulting from the audit and $1,436.18 in liquidated damages resulting from

late payments. (Robinson Affidavit, ¶4)

Abbott Construction’s documentation submitted in response to interrogatories

show that it owes contributions set forth on the audit for work performed from October

2007 through December 2007 and January 2008 through March 2008 (all periods under

the initial CBA). Abbott also stated that it paid contributions for Mr. Baldemar Salinas

for work performed in June 2008 (period covered by subsequent CBA). The audit

confirms this position. At oral argument, Abbott’s counsel explained that these

payments were made because Abbott was not aware of the change in associations until

the filing of this litigation.

The amount of contributions at issue for the period of April 1, 2007 through May

31, 2008 is $26,866.52. The amount of contributions at issue for the period June 1,
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2008 through September 31, 2009 is $20,238.08. Plaintiffs also seek liquidated

damages, interest and attorney fees.

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) empowers the court to render summary

judgment "forthwith if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The

Supreme Court has affirmed the court's use of summary judgment as an integral part of

the fair and efficient administration of justice. The procedure is not a disfavored

procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox

v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995).

The standard for determining whether summary judgment is appropriate is

"'whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.'"

Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.

2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The

evidence and all reasonable inferences must be construed in the light most favorable to

the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of

some alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that there be no genuine

issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
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(emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d

900, 907 (6th Cir. 2001).

If the movant establishes by use of the material specified in Rule 56(c) that there

is no genuine issue of material fact and that it is entitled to judgment as a matter of law,

the opposing party must come forward with "specific facts showing that there is a

genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968);

see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere

allegations or denials in the non-movant's pleadings will not meet this burden, nor will a

mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248,

252. Rather, there must be evidence on which a jury could reasonably find for the nonmovant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).

ANALYSIS

Plaintiffs contend that Abbott became bound to the 2008-2013 subsequent CBA

because of language in the 2003-2008 initial CBA, which required an employer to

provide notice, by registered mail at least sixty days prior to the termination of the CBA

or any subsequent CBA, that the employer will not be bound by future agreements

reached by the Union and the Association.

Finally, the Employer agrees that, unless he notifies the Union to the

contrary by registered mail at least sixty (60) days prior to the termination

date of this Agreement or any subsequent Agreement, the Employer will

be bound by and adopt any Agreement reached by the Union and the

Association during negotiations following the notice by the Union referred

to in the preceding sentence.

(Plaintiffs’ Exhibit C, p. 41). There is no evidence of a written termination by Abbott.
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Plaintiffs also point out that Abbott paid contributions for work performed from

June 2008 through November 2008, and April and May 2009. (Nowosacki Affidavit, ¶4

and Exhibit B). These contributions are within the period covered by the 2008-2013

subsequent CBA. 

The Acceptance of Agreement signed by Abbott’s president, shows that Abbott

agreed to become a party to the CBA between the Road Builders Association and the

CMIA as follows:

In consideration of the benefits to be derived and other good and

valuable consideration, the undersigned employer, although not a member

of the Labor Relations Division of the Michigan Road Builders Association,

does hereby join in, adopt, accept and become a party to the collective

bargaining agreement heretofore made by the Labor Relations Division of

the Michigan Road Builders Association with the Operative Plasterers’ and

Cement Masons’ International Association of the United States and

Canada and the International Union, Bricklayers and Allied Craftsmen,

affiliated with the Building and Construction Trades Department of the

AFL-CIO, including all of the provisions therein and any amendments

made thereto, and including those provisions pertaining to contributions to

Trust Funds and agrees to be bound by any Trust Agreement hereafter

entered into between these parties and agrees to make contributions as

required, and authorizes these parties to name the trustees to administer

said Fund and ratifies and accepts such Trustees and the terms and

conditions of the Trusts as if made by the undersigned.

(Acceptance of Agreement, emphasis added). The plain language of the Acceptance of

Agreement makes clear that Abbott agreed only to be bound by the agreements entered

by the particular parties to the initial CBA. 

When a contract is unambiguous, it must be enforced according to its terms. 

Hamade v. Sunoco, Inc., 271 Mich. App. 145, 166 (2006) (citation omitted). An

unambiguous contract reflects the parties’ intent as a matter of law, therefore courts

interpret and enforce such a contract as written. Phillips v. Homer (In re Smith Trust),
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480 Mich. 19, 24 (2008). When faced with an unambiguous contract, the court will not

consider parol evidence offered to vary or contradict the written contract. Hamade, 271

Mich. App. at 166. 

In this case, the Acceptance of Agreement clearly states that Abbott agreed to be

bound by the CBA and subsequent Trust Agreements entered into by the Road Builders

Association and the CMIA. Abbott further agreed that those specific entities could enter

into Trust Agreements and name Trustees, and that Abbott would be bound by those

decisions. 

At this point, the court’s consideration of plaintiff’s motion begins and ends with

the plain language of the Acceptance of Agreement. Abbott’s assent to be bound by the

initial CBA is clear and unambiguous. In the absence of any ambiguity in the

acceptance, the payments made or obligations incurred by Abbott after the merger of

the associations are not relevant to an assessment of Abbott’s responsibilities. 

At this stage of the litigation, plaintiffs have not established their case that Abbott

is bound by, and therefore is delinquent in fringe benefit contributions pursuant to, the

CBA between MITA and the CMIA. Plaintiffs’ motion for summary judgment is therefore

DENIED.

Dated: March 18, 2010

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

March 18, 2010, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk