Dugan, William E. v. R.J. Corman

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1011
WILLIAM E. DUGAN, et al.,
Plaintiffs-Appellants,
v.
R.J. CORMAN RAILROAD COMPANY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4114—Charles P. Kocoras, Chief Judge.
____________
ARGUED JUNE 2, 2003—SEPTEMBER 22, 2003
____________
Before POSNER, EASTERBROOK, and WILLIAMS, Circuit
Judges.
POSNER, Circuit Judge. The trustees of multiemployer
welfare and pension funds have sued Corman under ERISA
for failing to make contributions that the trustees claim
Corman was required to make by collective bargaining
agreements that it had made with the union effective in
1992, 1993, and 1996, respectively. The district judge ruled
for Corman after a trial based on a stipulated record, and
the trustees appeal.
Corman provides emergency services when a railroad (or
an industrial facility that has its own rail facilities) suffers
2 No. 03-1011
a derailment. The services include righting or disposing
of derailed cars by means of heavy equipment owned by
Corman, repairing damaged sections of track, and cleaning
up hazardous spills from derailed cars. Between derailments
there is work “in the shop,” that is, work at the facilities in
which Corman stores and maintains the equipment that
it uses to clean up derailments and from which its employ-
ees sally forth when a derailment occurs in the vicinity
of the facility to which they are assigned. One of these
facilities is in Gary, Indiana—or rather was. The last collec-
tive bargaining agreement between Corman and the union
concerning workers at the Gary facility, the 1996 agree-
ment, expired at the end of 1999. Negotiations for a new
agreement collapsed the following May, when Corman
withdrew recognition from the union. The union struck in
June and Corman closed the facility at the end of that
month.
The dispute giving rise to this suit concerns 25 workers
employed at various times between 1992 and 2000 at the
Gary facility who Corman contends were “casual employ-
ees” not entitled by the collective bargaining agreements
to pension and welfare benefits but who the trustees
contend were regular employees and thus entitled to the
benefits. (It appears that on average the Gary facility was
staffed by between four and eight employees conceded to be
regular employees plus one or two of the so-called casual
employees.) Two of the 25 worked after the last agreement
expired; the contributions due on behalf of these work-
ers present a distinct issue discussed later in this opinion.
The 1996 collective bargaining agreement defined “casu-
al employees” as “employees hired for a specific customer
project. Nothing in this section is to prevent casual em-
ployees from future employment on customer projects.
Furthermore, no casual employee will be employed if such
No. 03-1011 3
employment causes a reduction or prevents an increase
in hours of any present full-time and/or regular part-time
employee. Also, no casual employees shall be employed
as a means of preventing an increase in the number of
full-time and/or regular part-time employees.” The 1992
agreement had contained a similar definition but with the
addition that “casual employees’ hours of employment
shall not exceed 60 hours in a calendar month and/or a
customer project, whichever is greater.” Because Corman
had difficulty finding workers willing to accept emergency
calls for temporary work cleaning up derailments when the
income from that work was so limited, the hour restric-
tion was omitted from the subsequent agreements.
So far as the scope of our appellate review is concerned,
we note that a trial on a stipulated paper record is equiva-
lent to a conventional trial on (largely) oral evidence. Hess
v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir.
2001). Since the district judge based his interpretation of the
1996 agreement not just on its language but also on the
language that we just quoted from the 1992 agreement and
on the evidence we mentioned that was offered to explain
why that language was changed, the standard of appellate
review applicable to the interpretation might seem to be that
of clear error, rather than the de novo (plenary) standard.
Cook Inc. v. Boston Scientific Corp., 333 F.3d 737, 742 (7th Cir.
2003). But that is on the assumption that the judge was right
to consider evidence “extrinsic” to the 1996 agreement. He
was not if that agreement was clear as written, e.g., Geier v.
Medtronic, Inc., 99 F.3d 238, 244 (7th Cir. 1996); RJE Corp. v.
Northville Industries Corp., 329 F.3d 310, 314 (2d Cir. 2003)
(per curiam)—a principle fully applicable to collective
bargaining agreements. Bidlack v. Wheelabrator Corp., 993
F.2d 603, 608 (7th Cir. 1993) (en banc); Mazzei v. Rock-N-
Around Trucking, Inc., 246 F.3d 956, 960 (7th Cir. 2001); Pierce
County Hotel Employees & Restaurant Employees Health Trust
4 No. 03-1011
v. Elks Lodge, B.P.O.E. No. 1450, 827 F.2d 1324, 1327 (9th Cir.
1987). We think that the agreement was clear as written and
that therefore the judge should not have looked outside it,
and thus that our review should be plenary because the
interpretation of a contract is treated as an issue of law
when extrinsic evidence is not used in the interpretation.
E.g., Alexander v. City of Evansville, 120 F.3d 723, 727 (7th
Cir. 1997); Ryan v. Chromalloy American Corp., 877 F.2d 598,
602 (7th Cir. 1989); RJE Corp. v. Northville Industries Corp.,
supra, 329 F.3d at 314.
A further wrinkle is that the judge thought that only the
1996 agreement was at issue, but this is incorrect because
some of the employees in question worked under the ear-
lier agreements. That makes no difference to the appeal; the
only difference among the agreements, so far as the defini-
tion of “casual employees” is concerned—the 60-hour
restriction found in the first and dropped in the second and
third agreements—is, as we’ll see, immaterial.
Corman argues that as long as a worker was initially hired
to work on a specific project, he could be retained to work
between projects (and thus in the shop) without losing the
status of a casual employee. We disagree. A “casual em-
ployee,” in normal parlance as in the language of the
agreements, is one hired for a specific project or other
limited purpose, so that his employment ceases when he
finishes his work on the task that he was hired to do. See
Central States, Southeast & Southwest Areas Pension Fund v.
Kroger Co., 226 F.3d 903, 912 n. 2 (7th Cir. 2000); Central
States, Southeast & Southwest Areas Pension Fund v. Independ-
ent Fruit & Produce Co., 919 F.2d 1343, 1350 (8th Cir. 1990).
Employers faced with unpredictable surges in
demand—which is a good description of a company whose
business is cleaning up derailments—need a flexible
workforce, and one way of imparting flexibility is to have
No. 03-1011 5
a reserve pool of workers who go off the payroll when
the surge recedes. Such workers are “casual employees.”
Their leaving the payroll when the specific job for which
they’ve been hired ends is implicit in the definition of
them in the collective bargaining agreements as employees
“hired for a specific customer project.” Corman acknowl-
edges that “specific customer project” means a specific
derailment. The sentence that follows the definition of
casual employees states that they are not barred “from
future employment on customer projects” (emphasis added),
implying that they can’t be rehired to do storage and
maintenance or the other tasks that are performed between
derailments and that correspond to what firemen do
between fires; no more can they be hired for such work
initially.
The deletion of the 60-hour limit found in the 1992
collective bargaining agreement has no bearing on “casual
employees” who did not bump up against the limit
or did not work under that agreement and so were not
bound by the limit. Under the subsequent agreements a
casual employee who worked 80 hours in a two-week
period was still a casual employee—provided he spent
those 80 hours working only on derailments rather than
performing maintenance or other chores in the Gary shop.
At argument Corman’s lawyer contended that the only
limitation on casual employees in the later agreements is
that they may not take work away from regular employees.
That is not the only limitation. A casual employee loses
his status if he takes work away from the regular employ-
ees, yes—but he is not entitled to that status in the first
place unless hired to work on a specific customer project,
that is, a derailment, and he loses that status if, though
initially hired to work on a derailment, he is retained to
work in the shop after his work on the derailment is fin-
ished.
6 No. 03-1011
The question then is whether the 25 employees ever
worked in the shop. Information culled from payroll rec-
ords indicates the number of hours that employees, wheth-
er regular or casual, who were assigned to the Gary facility
worked every week. The hours are classified as “Regular,”
“Wreck,” or “OT-Wreck” (“OT” standing for overtime).
“Regular” suggests work not tied to a specific derailment
(and thus not tied to a specific customer project, and thus
continuing in the shop between derailments), while
“Wreck” and “OT-Wreck” suggest work on a specific
derailment. An appendix to the collective bargaining
agreements states that the “Regular Shop rate shall be [for]
all hours worked in the shop.” This is further evidence that
“Regular” work is work done by regular employees; in
contrast, “Wreck” rates are for “customer service work.”
And the 25 employees whose status is in issue worked
approximately the same total hours, and with approxi-
mately the same proportion of regular to wreck hours, as the
regular staff of the Gary facility.
It is, we acknowledge, conceivable that much or for that
matter all work described as “Regular” was actually tied
to a specific derailment or a succession of derailments.
There is no evidence of the frequency of derailments or the
average length of time it takes to clean one up, and so we
don’t know whether derailments follow so hard upon
each another that a casual employee might be employed
for months on end on specific customer projects with
only nominal breaks in service (not showing up in the
company’s records) between projects and thus without
doing any “regular” work. That seems unlikely, however,
and at argument Corman’s lawyer conceded that the
“regular” work shown on the employee records was in-
deed work not tied to a specific customer project. We hesi-
tate to hold parties to concessions that their lawyers
make in the heat of argument. But Corman’s trial brief
No. 03-1011 7
had said in like vein that “most of the casuals who did
work regularly and stayed with the company over an extended
period of time eventually were promoted to ‘regular’ posi-
tions with full CBA [collective bargaining agreement]
coverage” (emphasis added), which implies that the so-
called casual employees did regular work before they were
reclassified as regular employees; and employees who do
regular work are regular employees.
Given that the 25 so-called casual employees were in fact
regulars, it is difficult to understand why their casual
status wasn’t forfeited by virtue of the limitation that
Corman itself emphasizes—that casual employees may not
substitute for regular ones. Maybe Corman couldn’t afford
to pay regular wages and fringes to additional workers,
but if so it should have renegotiated the collective bargain-
ing agreement to permit it to hire additional regular work-
ers on terms different from those of its core staff. Such two-
tier hiring is unexceptionable.
We have next to consider the trustees’ quest for contribu-
tions on behalf of the two of the 25 employees who worked
after the last collective bargaining agreement expired in
December 1999. The trustees argue that Corman extended
the collective bargaining agreement both by continuing to
make the contributions (on behalf of those employees
whom Corman recognized as regulars) that were required
by the agreement for seven months after it expired and by
signing reports of contributions to the funds that stated that
“the undersigned employer, if not already a signatory
hereby becomes a signatory party to the current applicable
Collective Bargaining Agreement.”
In a related case, R.J. Corman Derailment Services v. Interna-
tional Union of Operating Engineers, Local Union 150, AFL-
CIO, 335 F.3d 643 (7th Cir. 2003), the district court held that
8 No. 03-1011
a dispute between Corman and the union over wages was
subject to an arbitration provision in the expired agree-
ment. We reversed on procedural grounds without decid-
ing whether “Corman was continuing to abide by at least
the wage terms of the expired CBA because (a) it believed
that there was a new agreement between the parties, (b)
it believed that the old agreement had been extended, or
(c) because as a unilateral matter it was simply abiding by
the old terms in good faith while attempting to negotiate
a new agreement.” Id. at 648.
We reject both of the trustees’ arguments. But we do not
reject the second (the one based on the language that we
quoted from the contributions report) for the reason given
by Corman—that the language is “boilerplate.” In the
absence of fraud, mistake, unconscionability, or like de-
fenses, a person is bound by all provisions in a contract,
including standard provisions colloquially described as
“boilerplate.” (We have no doubt that Corman enforces
boilerplate provisions in the contracts that it drafts.) There
is no “mere boilerplate” defense to a suit for breach of
contract (or a defense to a defense to such a suit), Operating
Engineers Local 139 Health Benefit Fund v. Gustafson Con-
struction Corp., 258 F.3d 645, 650 (7th Cir. 2001); Adams
v. Merrill Lynch Pierce Fenner & Smith, 888 F.2d 696, 700-01
(10th Cir. 1989), any more than there is a “fine print” or
“I didn’t read it” defense. Paper Express, Ltd. v. Pfankuch
Maschinen, 972 F.2d 753, 757 (7th Cir. 1992); Northwestern
National Ins. Co. v. Donovan, 916 F.2d 372, 377-78 (7th Cir.
1990); Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d
1286, 1292 (7th Cir. 1989); Schell v. Ford Motor Co., 270 F.2d
384, 386 (1st Cir. 1959). Allowing such defenses would be
a throwback to the era of exaggerated concern with the
supposed one-sidedness of form or standard contracts
denigrated as “contracts of adhesion.” As we explained in
Northwestern National Ins. Co. v. Donovan, supra, 916 F.2d
No. 03-1011 9
at 377, “widespread judicial suspicion of the form con-
tract—the dreaded ‘contract of adhesion,’ the contract that
is offered by the authoring party on a take it or leave it ba-
sis rather than being negotiated between the parties . . .
[—]has never crystallized . . . in a rule making such con-
tracts unenforceable, on grounds of fraud or duress or
unconscionability or mistake or what have you, or even
presumptively unenforceable . . . . Although the vagueness
of the concept of unconscionability may seem to place
contracts of adhesion under a cloud, they are generally
upheld against attacks from that direction.” See also DeValk
Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 332-34
(7th Cir. 1987); Adams v. Merrill Lynch Pierce Fenner & Smith,
supra, 888 F.2d at 700-01.
What is true is that boilerplate will sometimes be irrele-
vant to the document in which it has been unthinkingly
inserted, e.g., Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996);
United States v. Lombardi, 5 F.3d 568, 572 n. 4 (1st Cir.
1993)—as in this case. The boilerplate that we quoted from
the report of contributions is meant for the situation in
which an employer who has not yet signed a collective
bargaining agreement nevertheless acts in conformity with
it, indicating an intention to be bound. If no agreement is
in force, there is nothing for him to adhere to. Granted,
Corman continued after the collective bargaining agree-
ment expired to make contributions for those employees
(not the two in question, who are among the 25 whom
Corman improperly classified as casual employees) whom
it acknowledged to be regular employees. This is evidence,
as the trustees argue (it is their first argument for why
Corman owes contributions for the two “casual” workers
who worked after the agreement expired), that Corman
considered the agreement to be still in effect despite its
formal expiration. Firesheets v. A.G. Building Specialists, Inc.,
134 F.3d 729, 731 (5th Cir. 1998) (per curiam). It is weak evi-
10 No. 03-1011
dence, however—evidence the district judge was not re-
quired to credit—because Corman had made clear its
unwillingness to continue its relationship with the union,
and the funds were the offspring of that relationship.
But before dismissing the evidence, we must consider
the bearing of the fact that ERISA does not author-
ize contributions to a union welfare benefits plan other
than in accordance with a written agreement, 29 U.S.C.
§ 1145, and that the Landrum-Griffin Act positively forbids
payments to a union or union-related entity other than
in accordance with a written agreement. 29 U.S.C.
§ 186(c)(5)(B). These provisions might seem to compel an
inference that Corman’s contributions were made pursu-
ant to a subsisting, effective agreement, which could
only have been the collective bargaining agreement, tacitly
extended. But the cases hold that an expired agreement—
one that has no contractual force—nevertheless can satisfy
the statutory requirements, “in part because even after
expiration of such an agreement, an employer has a duty
to bargain in good faith and maintain the status quo as
to wages and working conditions until a new agreement
or an impasse is reached.” Alaska Trowel Trades Pension Fund
v. Lopshire, 103 F.3d 881, 883 (9th Cir. 1996); see also Gariup
v. Birchler Ceiling & Interior Co., 777 F.2d 370, 375 (7th
Cir. 1985); Denver Metropolitan Ass’n of Plumbing, Heating,
Cooling Contractors v. Journeyman Plumbers & Gas Fitters Lo-
cal No. 3, 586 F.2d 1367, 1373 (10th Cir. 1978).
It follows that the continued contributions may not even
have been voluntary on Corman’s part, and if they were
involuntary they certainly were not an acknowledgment of
a contractual obligation. After the expiration of the 1996
collective bargaining agreement and while the parties were
attempting to negotiate a new one, Corman was obligated
by the National Labor Relations Act to maintain the status
No. 03-1011 11
quo, NLRB v. Katz, 369 U.S. 736, 737-39, 743 (1962); NLRB
v. Emsing’s Supermarket, Inc., 872 F.2d 1279, 1284-85 (7th
Cir. 1989), and the status quo included making contribu-
tions required by the expired collective bargaining agree-
ment. American Distributing Co. v. NLRB, 715 F.2d 446, 449,
451-52 (9th Cir. 1983); NLRB v. Cauthorne, 691 F.2d 1023(D.C. Cir. 1982); Producers Dairy Delivery Co. v. Western
Conference of Teamsters Pension Trust Fund, 654 F.2d 625, 627
(9th Cir. 1981); Peerless Roofing Co. v. NLRB, 641 F.2d 734, 736
(9th Cir. 1981). It is true that although the negotiations
terminated in May of 2000, five months after the collective
bargaining agreement expired, Corman continued for two
more months making contributions on behalf of those
employees whom it had classified as regular employees. But
Corman could not be certain that the Labor Board would
agree that a bargaining impasse had been reached in May,
compare Beverly Farm Foundation, Inc. v. NLRB, 144 F.3d
1048, 1055 (7th Cir. 1998), and so it may have decided to
continue contributing for a time merely out of an abundance
of caution.
The last issue, a footnote to the one just discussed, is
whether the district judge was right to strike an affidavit
presented by the trustees that quoted from a “Trust Agree-
ment” that they argue constituted an agreement by Corman
to make contributions even after the expiration of the
collective bargaining agreement. Ordinarily an affidavit
would not be evidence at a trial, but remember that the
trial in this case was, by agreement of the parties, conducted
on a purely paper record.
The judge struck the affidavit on the ground that it was
unreliable because the Trust Agreement itself was not
attached; indeed, the agreement never was made a part of
the record. He was entitled to do this. The meaning of
quoted phrases often depends critically on the unquoted
12 No. 03-1011
context, and it is therefore a bad practice (and will often and
here violate both the “best evidence” rule of Fed. R. Evid.
1002 and the “completeness” rule of Fed. R. Evid. 106) to
present trial excerpts from a key document without intro-
ducing the document itself. Frymire-Brinati v. KPMG Peat
Marwick, 2 F.3d 183, 187 (7th Cir. 1993); American Bald Eagle
v. Bhatti, 9 F.3d 163, 167-68 (1st Cir. 1993); United States v.
Marin, 669 F.2d 73, 84-85 (2d Cir. 1982); 2 McCormick on
Evidence § 231 (John W. Strong ed., 5th ed. 1999). Imagine
the trial of a breach of contract case in which the contract is
not placed in evidence, but only a few snippets; that was
what the trustees were trying to do.
They argue Corman did not make its objection to the
affidavit clear enough. But Corman said that the affidavit
was not the best evidence of what the Trust Agreement
provided, and that was good enough. Anyway a judge is
entitled to exclude unreliable evidence even if no party
objects. E.g., 1 id., § 55; HDM Flugservice GMBH v. Parker
Hannifin Corp., 332 F.3d 1025, 1034 (6th Cir. 2003); Maddox v.
Patterson, 905 F.2d 1178, 1180 (8th Cir. 1990); Sterling Drug,
Inc. v. Cornish, 370 F.2d 82, 85-86 (8th Cir. 1966). For even in
our adversarial system the judge is not merely an umpire.
Implicit in the broad discretion that trial judges enjoy in the
management of trials is the judge’s responsibility both to
conserve judicial resources and to secure the basic accuracy
of the litigation process. Had the trustees presented an
affidavit from an astrologer or a psychic concerning the
meaning of “casual employees,” the judge would have been
entitled, indeed required, to exclude it even if Corman had
not objected. The principle is similar to that which would,
as we pointed out in Lloyd v. Loeffler, 694 F.2d 489, 495 (7th
Cir. 1982), divert a judge from deciding a contract case by
reference to the Code of Hammurabi even if the contract
contained a choice of law clause that selected the Code
No. 03-1011 13
to be the law applicable to disputes arising out of the
contract.
With the affidavit properly excluded, there is no basis
for our disturbing the district judge’s ruling that Corman
had no contractual obligation to the funds on behalf of
the two “casual” employees who worked after the last
collective bargaining agreement expired. The judgment of
the district court is therefore affirmed with respect to the
post-expiration contributions, but reversed with respect to
the pre-expiration contributions, and the case is remanded
for a determination of the amount of money to which
the funds are entitled.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-22-03