Central States, Southeast & Southwest Areas Pension Fund v. Independent Fruit & Produce Co.

919 F.2d 1343
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 6, 1990
DocketNos. 89-1927 to 89-1929, 89-1933 to 89-1937, 89-2204 to 89-2210, 89-2438, 90-1160 to 90-1162, 89-2839 and 89-2840
StatusPublished
Cited by10 cases

This text of 919 F.2d 1343 (Central States, Southeast & Southwest Areas Pension Fund v. Independent Fruit & Produce Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Central States, Southeast & Southwest Areas Pension Fund v. Independent Fruit & Produce Co., 919 F.2d 1343 (8th Cir. 1990).

Opinion

BEAM, Circuit Judge.

In this consolidated appeal, Central States, Southeast and Southwest Areas Pension Fund (Central States) appeals from judgments entered in favor of defendants-employers. Pursuant to sections 502 and 515 of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1132, 1145 (1988), Central States brought separate actions against more than twenty independent produce wholesalers to collect delinquent pension contributions. Central States contended that the produce companies failed to make pension contributions on behalf of certain employees as required by the governing collective bargaining agreements. Central States argued that these employees, whose questionable status was discovered in an audit, were regular employees for whom contributions were due. The employers, however, classified these employees as “casuals” for whom contributions were not required by the collective bargaining agreements. The district court found that the collective bargaining agreements were ambiguous and looked to the intent and past practice of the parties to define “casual employee.” The district court held that a “casual employee” is not necessarily a person who works only intermittently or sporadically, as Central States thought, but, instead, includes those employees so designated by the employer, with the consent of the union, regardless of their work schedules. Accordingly, the district court found no contributions owing [1346]*1346and entered judgment for defendants. We reverse.1

I. BACKGROUND

Due to their physical proximity on several city blocks in St. Louis, the defendants-employers in these cases, members of the St. Louis Fruit and Produce Association, are collectively known as Produce Row. Most are independently owned, family-run companies, wholesaling fresh fruits and vegetables to small, independent grocers. Central States is an employee benefit fund as defined by ERISA. See 29 U.S.C. § 1002. Central States, which is headquartered in Chicago, receives more than 5,000 collective bargaining agreements for review each year, covering more than 250,000 active participants and 125,000 retired participants. In this case, contributions to the pension fund are governed by collective bargaining agreements negotiated by the employers and Local 688 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

The collective bargaining agreements at issue cover the years 1973 through 1988 and are dated 1973, 1976, 1979, 1982 and 1985. Because they contain similar provisions on casual employees, the agreements dated before 1982 can be conveniently considered together. The pre-1982 agreements provide in Article IX that casual employees are to be hired subject to need, that their hiring cannot increase “the normal then existing number of working employees,” that casuals cannot work more than eighty hours per month, and that casuals are to be used as replacements for regular employees. Article IX was renegotiated in 1982 so that many of these restrictions on the use of casuals were eliminated. Generally, however, all relevant agreements provide that casual employees receive neither fringe benefits nor seniority. At issue is not whether casuals are entitled to benefits, but, rather, which employees are casuals.

The dispute over the meaning of “casual employee” arose from a random audit in October 1983 of Lamperson Fruit and Produce Company. As a result of the audit, which covered September 28, 1980, to September 24, 1983, Central States claimed that Lamperson owed $73,034 for “ ‘non-reporting of eligible Plan Participants.’ ” Central States, Southeast & Southwest Areas Pension Fund v. N.E. Friedmeyer-Sellmeyer Distrib. Co., No. 84-1669 C (5), slip op. at 6 (E.D.Mo. Apr. 28, 1989). In its audit, Central States discovered employees who worked more or less full-time during the audit period but whom Lamperson classified as casuals. Because it understood casuals to be employees who worked only sporadically or intermittently as needed, Central States contended that these employees were regulars for whom contributions were due. In the resulting action to collect delinquent contributions, Central States requested audits of the Produce Row employers.

On January 16, 1985, the Chief Judge of the Eastern District of Missouri designated the case against Friedmeyer-Sellmeyer Distributing Company as “the most suitable case to try, brief and decide as a guide in the ultimate trying, briefing and decision in all of the above cases.”2 Appellants’ App. at 255. On January 12, 1987, the district court ordered defendant Friedmeyer-Sellmeyer to submit to an audit of its personnel records from December 28, 1980, to December 31, 1983. Central States, Southeast & Southwest Areas Pension Fund v. N.E. Friedmeyer-Sellmeyer Distrib. Co., 650 F.Supp. 978, 980 (E.D.Mo. [1347]*13471987). The audit was later expanded to cover the years 1979 to 1986. It revealed seven employees who worked essentially full-time for some if not all of the audit period. “[T]he audit report ... revealed that six of the seven employees included in the report worked virtually every week for over one year and one of these individuals worked all but two weeks during a period of nearly six years.” Brief for Appellant at 16. William Kauck, who conducted the audit of Friedmeyer-Sellmeyer, testified that the audit revealed “an inordinate use of what the employer was calling ‘casual employees.’ ” Trial Transcript vol. 1, at 127. As a result of the audit, Central States claimed that Friedmeyer-Sellmeyer owed $24,774 in delinquent contributions.

At the bench trial, Friedmeyer-Sellmeyer contended that its use of casual employees was consistent with the collective bargaining agreements, that no dispute or misunderstanding about casuals existed between the employer and the union, that none of the casuals were confused about their status as casuals, and that the only party complaining was Central States. The evidence established that it was standard practice for the Produce Row employers to initially hire all employees as casuals, some of whom might later become regulars upon a vacancy. Trial Transcript vol. 2, 67, 80, 147, 214. Several witnesses testified that the casuals knew of their status when hired, id. at 99, 116, 163, and that no one “other than Central States ever questioned which employees were casuals versus regulars.” Id. at 163. Casuals were casuals merely because they were hired as casuals and because they received no benefits. Id. at 62, 64, 199.

The evidence is also clear, however, that casuals did the same work as regulars and in some cases worked as many hours as regulars. The testimony of Douglas Brand, the secretary-treasurer of United Fruit and Produce Company, is typical:

Q: Do they have the same hours at work?
A: They may.
Q: They work full time?
A: They may.
Q: Any difference in the hours of a casual or regular?
A: Not that I know of.

Id. at 109.

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919 F.2d 1343 (Eighth Circuit, 1990)

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