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Wisconsin Laborers Health Fund v. Bob Ewers Contracting, LLC

United States District Court, W.D. Wisconsin

November 6, 2017

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,
v.
BOB EWERS CONTRACTING, LLC, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Defendant 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.

         Plaintiffs 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.

         Plaintiffs 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.

         Damages will be determined at the bench trial scheduled for November 16, 2017.

         UNDISPUTED FACTS

         Plaintiffs 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.[1]

         A. Collective bargaining agreements

         Plaintiffs' 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.

         Under 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, and bottommen.

         The 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 unit.

Dkt. 14-4, Art. IV(1), and Dkt. 14-5, Art. IV(1).

         B. The Ewers family business

         Bob 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.

         Bob, 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 the ...


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