United States District Court, W.D. Wisconsin
WISCONSIN LABORERS HEALTH FUND, WISCONSIN LABORERS PENSION FUND, WISCONSIN LABORERS APPRENTICESHIP AND TRAINING FUND, WISCONSIN LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, and JOHN J. SCHMITT, Plaintiffs,
BOB EWERS CONTRACTING, LLC, Defendant.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
Bob Ewers Contracting, LLC, is a small construction business
operated by Bob Ewers, his two sons, and his three grandsons.
Bob Ewers Contracting entered into collective bargaining
agreements (CBAs) with the Wisconsin Laborers' District
Council, a union that represents construction laborers. Under
the CBAs, Bob Ewers Contracting agreed to reserve certain
categories of work for the members of the bargaining unit and
to contribute to the union's employee benefit plans. Bob
Ewers Contracting employs solely Ewers family members who are
not members of the union, and it does not contribute to the
employee benefit plans.
are benefit plans affiliated with the union and a trustee of
one of those plans. Plaintiffs contend that Bob Ewers
Contracting violated the terms of the CBAs by assigning the
work reserved for the bargaining unit to non-bargaining unit
employees and by failing to contribute to the employee
benefit plans. Plaintiffs bring this case under the Employee
Retirement Income Security Act of 1974 (ERISA) and the Labor
Management Relations Act of 1947 (LMRA), although it is
essentially a breach-of-contract action.
move for summary judgment on liability. Dkt. 10. The court
concludes Bob Ewers Contracting breached the CBAs in two
ways. First, Bob Ewers Contracting failed to contribute to
the employee benefit plans for Ewers family members who are
employees covered by the CBAs. Second, Bob Ewers Contracting
assigned work reserved for the members of the bargaining unit
to family members who are not members of the bargaining unit.
will be determined at the bench trial scheduled for November
Wisconsin Laborers Health Fund, Wisconsin Laborers Pension
Fund, Wisconsin Laborers Apprenticeship and Training Fund,
and Wisconsin Laborers-Employers Cooperation and Education
Trust Fund are employee benefit plans affiliated with the
Wisconsin Laborers' District Council, the union that
represents construction laborers. Plaintiff John J. Schmitt
is a trustee and beneficiary of Wisconsin Laborers Health
Fund. Defendant Bob Ewers Contracting, LLC, is a Wisconsin
limited liability company.
Collective bargaining agreements
claims arise from two CBAs: the Heavy and Highway
Construction Agreement effective from June 1, 2009, to May
31, 2014, Dkt. 14-4, and the Heavy and Highway Construction
Agreement effective from June 1, 2014, to May 31, 2017, Dkt.
14-5. The parties agree that these two CBAs are identical for
the purposes of this lawsuit except for the time they cover.
Each CBA is an employment contract between the Wisconsin
Transportation Employers Council and the Wisconsin
Laborers' District Council. Bob Ewers Contracting is a
signatory contractor and is bound by both CBAs.
the CBAs, each signatory contractor must contribute to
pension, health, training, and education funds for all hours
worked by “Laborers.” Dkt. 14-4, Arts. XIII-XV,
and Dkt. 14-5, Arts. XIII-XV. The CBAs do not expressly
define the term “Laborers, ” but they identify
the categories of work reserved for Laborers. Each CBA
provides under Article IV(3) that “[t]he handling of
all materials to point of erection and final stripping shall
be the assigned work of the Laborer.” Article IV(4)
provides that certain enumerated tasks performed in highway
construction, such as digging ditches, laying storm sewers,
tunnel and shaft construction, and compacting, are
“tasks performed by Laborers.” Article IV(4) also
identifies the tools Laborers often use to perform their
work, including shovels and compactors. Article XI provides
sub-classifications of Laborers, such as pipelayer, topmen,
CBAs prohibit a contractor from assigning Laborer work to
employees who are not members of the bargaining unit. Article
IV(1) in each CBA says:
The Contractor agrees to respect the jurisdiction, rules and
agreement of the Union under this agreement and shall not
direct or require its employees or persons other than the
employees in the bargaining unit here involved, to perform
work which is recognized as the work of the Laborers in said
Dkt. 14-4, Art. IV(1), and Dkt. 14-5, Art. IV(1).
The Ewers family business
Ewers Contracting is a construction company. Bob Ewers
Contracting's workforce comprises six employees: Bob
Ewers, his two sons, Dean Ewers and Dale Ewers, and his three
grandsons, Chris Ewers, Kevin Ewers, and Dale Ewers Jr.
Dean, and Dale ordinarily operate heavy equipment. The
parties agree that operating heavy equipment is not Laborer
work. These three individuals are members of another union,
the Operating Engineers Union, but they are not members of