Consolidated appeals from orders of the Eastern District of New York, Eugene H. Nickerson, Judge, dismissing, for lack of standing on the part of the plaintiffs, two suits brought by less than a majority of the trustees of employee-benefit plans against the participating employers, and a third suit by an employee participant and beneficiary of the plans, all three suits seeking to recover fringe benefit contributions allegedly owed to the the plans. Affirmed.
Before: KEARSE and CARDAMONE, Circuit Judges, and POLLACK, Senior District Judge.*fn*
MILTON POLLACK, Senior District Judge:
This litigation involves three actions brought by union-appointed trustees of the Tapers Industry Insurance Fund and the Tapers Industry Annuity Fund (the Funds), and by a participant and beneficiary of the Funds claiming individually and on behalf of others similarly situated, to recover fringe benefit contributions and liquidated damages allegedly due the Funds from employers. Plaintiffs also claim that the employer-appointed co-trustees who have been named as nominal defendants, breached their fiduciary duties by not joining as plaintiffs in the suits.
Jurisdiction is based on the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(e)(1)(1982).
The employers moved to dismiss the suits on the ground that the trust agreements involved require the plaintiffs to submit their complaint to arbitration in the first instance, and on the further ground that nothing was due to the Funds because none of the members of the Union were involved in the work which is the subject of the complaints.
The District Court, Nickerson, J., dismissed the suits on the grounds that the union-appointed trustees lacked standing to sue to recovery of allegedly delinquent contributions without first obtaining an arbitration decision directing the employer-appointed trustees to join them, and that the collective bargaining agreements, requiring payment of fringe benefit contributions, apply only to work performed by members of the Union.
The employer-defendants and the Drywall Tapers and Pointers of Greater New York, Local Union 1974 (the Union), an arm of the construction industry, entered into ongoing collective bargaining agreements within the scope of § 8(f) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(f)(1982).
Each agreement covers all work defined therein as "Tapers' and Pointers' work," performed within a specified geographical area (New York City and parts of Nassau County). Each contains a Union shop clause requiring employees who are members of Local 1974 to remain members, and requiring every journeyman or apprentice employed by an employer who is not a member to become a member of Local 1974 by the eighth day of his employment. Each also contains a no-subcontracting clause prohibiting employers from subcontracting any taping, pointing, or other covered work to any journeyman or to any employer not under contract with Local 1974.
In addition, each agreement obligates each employer to pay contributions to the Tapers Industry Insurance and Annuity Funds in weekly amounts measured by the wages of each employee who is a member of Local 1974 equal to 32% of the hourly wages received from the employer.
Each Fund is governed by six trustees, three appointed by the Union (Local 1974), and three by or on behalf of the employer-defendants. The trust agreements and the Taft-Hartley Act, 29 U.S.C. § 186(c)(5)-(8), require equal representation in the administration of the Funds, i.e., the operation and administration of the Funds is the joint responsibility ...