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MID-AMERICA REGIONAL BARGAINING ASSOCIATION January MARBA MATTERS Serving the Construction Industry Since 1971
Grievances and Arbitrations
Chicago Regional Council of Carpenters Arbitrations
There was one arbitration request filed by the Union this month in which the company refused to
place a steward on a jobsite.
Laborers Joint Grievance Committee Two grievances are currently on the hearing schedule for the Joint Grievance Committee meeting on January 31. One dispute alleges underpayment of wages and fringe benefits resulting from an audit and the amount sought exceeds $150,000. Local 76 submitted a grievance seeking reinstatement of the union steward.
Teamsters Joint Grievance Committee There are three grievances to be heard at the February 1, 2012 meeting of the JGC. Two grievances were filed by Local 731 and involve the same contractor. The issues are claims by a member who was not paid for hours worked and removal of a warning letter from a grievant’s file. The grievance filed by Local 673 alleges discrimination and the wrongful termination of a member.
Collective Bargaining
Construction Wage and Benefit Settlements in 2011 The Construction Labor Research Council reported that the first year increase for wage and fringe benefits settlements in 2011 averaged $0.73 or 1.7 percent. This compares to the settlements in 2010 which averaged $0.80 or 1.7 percent and in 2009 which was significantly higher, averaging $1.23 or 2.8 percent. The length of contracts continues to be shortened with over two thirds of the settlements in 2011 for only one year. The largest number of settlements was in the East North Central region which covers Illinois, Indiana, Michigan, Minnesota, Ohio, West Virginia and Wisconsin. The lowest regional average increase was 0.8 percent in the South Central region and the highest was in the Northwest regional at 2.3 percent. Source: Construction Labor Research Council
2012 Negotiations There are two MARBA contracts expiring this year – Automobile Mechanics, Local 701 and Teamsters Joint Council No. 25. The Craft Committees will be selecting a Chairman and begin preparations for the negotiations next month. The bargaining rights informational packet was sent to the associations for dissemination to their members.
Negotiation Forum There are several major trades with contracts expiring this year – Glaziers, Heat & Frost Insulators, Ironworkers, Pipefitters, Plumbers and Teamsters. MARBA will be hosting its annual Negotiation Forum on March 9 for those associations whose contracts expire this year for an exchange of information. Invitations have also been extended to associations outside the Chicagoland area. Casey’s Corner – An Update on Construction Legal Issues
Multiemployer Funds - Know Your Obligations and Use Common Sense Contractors, like other employers in lean economic times, often face the issue of “who do I pay” and “when”. We cannot tell you how to order your priorities, but we advise you of the potential consequences of delaying fringe benefit contribution payments to multiemployer plans (in addition to payment of interest and liquidated damages) – or of engaging in “self-help” where you may believe you are owed a “credit” by a fund.
On the first topic, the general rule (absent facts permitting “piercing” of the corporate veil) is that company owners are not personally liable for a corporation’s debts. That rule does not always apply, however, to ERISA trust fund contributions, and contractors need to understand that failure to pay contributions in a timely manner can lead to a potential personal liability (or expensive litigation over that issue) in at least two circumstances:
examine that document to see if it imposes additional liabilities for unpaid contributions on corporate officers, shareholders or LLC members. The MARBA agreements do not have such language, but other contracts may - employers need to review and know their contractual obligations.
contributions that are “due and owing” then the funds can pursue personal liability on a theory of a fiduciary breach under ERISA. That was the conclusion of a federal district court recently in West Virginia Laborers Pension Trust Fund v. Owens Pipeline Service LLC (11/18/11). There, the court ruled that the “due and owing” plan language effectively meant that unpaid contributions were part of the trust, and so the president and sole member of the LLC was a fiduciary with respect to the funds, and personally liable for the underpayments as a result of that “fiduciary” status. Employers need to know what the relevant Plan documents provide, in addition to knowing their contracts.
On the second topic, there are occasions when employers overpay contributions to a trust fund – it may simply be a “math error” or it may be a mistake in determining what/who is covered by the plan. If that occurs, do not expect the fund to give you an automatic credit on future contributions and do not engage in self-help by taking the credits yourself on future contributions. A little bit of common sense goes a long way. Just as you normally don’t get to unilaterally take a credit on your other bills, neither can you do so for a multiemployer trust fund. That was the lesson learned by the employer in Greater St. Louis Construction Laborers Welfare Fund v. Park-Mark Inc. (11/1/11). There, the court decided that the fund could collect unpaid employer contributions (plus interest, liquidated damages, etc.) that the employer had unilaterally withheld to offset prior (claimed) overpayments of contributions. ERISA provides a mechanism for requesting a return of “mistakenly” paid contributions, and employers who think they should get a credit need to request that relief from the Plan Administrator first, and show that the mistaken payments were made as a result of a “mistake of fact or law”. Trust funds typically have rules and procedures governing such requests - employers should contact the fund office to obtain a copy and then comply with those terms. Taking a unilateral credit on a “going-forward” basis just builds up additional liabilities for the employer. Submitted by: Robert P. Casey, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
MARBA Memos Association Presidents The MARBA Officers will host a meeting with the member association presidents on March 13 after the regularly scheduled Board meeting. Since there are several new association leaders, this forum will provide them with an overview of MARBA and its activities as well as a valuable networking opportunity with the other association presidents.
MARBA Industry Advancement Fund The MARBA Board approved the appointment of Larry Hill, Ryan Incorporated Central, as the MIAF trustee for Lake County Contractors Association.
Committee Appointments The MARBA Board approved the following appointments to the Craft and Joint Grievance Committees: Bricklayers Craft Committee,James Zuidema, Jimmy’Z Masonry (Mason Contractors Association)
Laborers Craft Committee, Craig Lamp, Lamp, Inc. (Fox Valley Associated General Contractors)
Laborers Joint Grievance Committee, Cliff Horn, A. Horn, Inc. (Mason Contractors Association) Ed Knowles, Knowles Construction Co. (Underground Contractors Association)
Operating Engineers Joint Grievance Committee, Ed Knowles, Knowles Construction Co. (Underground Contractors Association)
MARBA appreciates their commitment to the industry and willingness to serve on the
Committees.
Calendar February 1 9:00 a.m. Teamsters Joint Grievance Committee (MARBA)
February 3 6:00 p.m. Laborers Apprentice Graduation (Carol Stream)
February 7 10:30 a.m. Trade Association Partnership (Downers Grove)
February 20 7:00 a.m. Teamsters Craft Committee (MARBA)
February 23 9:00 a.m. Teamsters Joint Grievance Committee (Burr Ridge)
February 28 9:00 a.m. Laborers Joint Grievance Committee (MARBA)
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