Chicago Regional Council of Carpenters Pension Fund v. Schal Bovis, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3413 & 14-3336
CHICAGO REGIONAL COUNCIL OF
CARPENTERS PENSION FUND, ET AL.,
Plaintiffs-Appellees, Cross-Appellants,
v.
SCHAL BOVIS, INC.,
Defendant-Appellant, Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-cv-00992
Sharon Johnson Coleman, Judge, and Manish S. Shah, Judge.
____________________
ARGUED OCTOBER 29, 2015 — DECIDED JUNE 10, 2016
____________________
Before FLAUM, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. This action was brought by four
carpenter union fringe benefit funds (“the Funds”) under
§ 301 of the Labor Management Relations Act (“LMRA”), 29
U.S.C. § 185, and § 502(a) of the Employee Retirement Income
2 Nos. 14-3413 & 14-3336
Security Act (“ERISA”), 29 U.S.C. § 1132(a). The Funds allege
that Schal Bovis, Inc., a general contractor that builds large
and small buildings in the Chicago metropolitan area, failed
to make fringe benefit payments for work performed by non-
union labor, as was required under collective bargaining
agreements. The Funds started with 36 claims of unpaid
fringe benefits, but proceeded to trial on only four claims. The
district court granted summary judgment to the Funds on all
four claims on the issue of liability. From summary judgment,
the parties proceeded to a bench trial on damages, and from
there both parties appeal. Schal Bovis appeals the granting of
summary judgment for two of the four claims, the calculation
of damages for those two claims, and the amount of attorneys’
fees awarded. The Funds cross-appeal the calculation of dam-
ages for one of the claims and the admission of certain evi-
dence for that calculation.
We reverse the district court’s grant of summary judgment
on the two claims Schal Bovis appeals and remand for further
proceedings. In the first claim, we hold that the non-union
subcontractor should be considered a single employer with
the union signatory who ultimately performed the work.
Consequently, the Funds are prevented from claiming fringe
benefits for the work performed in that claim because Schal
Bovis subcontracted the work to a union signatory as required
by the collective bargaining agreement. In the second claim,
we hold that the collective bargaining agreement prevented
the carpenters’ union from claiming work which was the ex-
isting practice of other trade unions. Since Schal Bovis pre-
sented undisputed evidence that the work performed in the
second claim was the existing practice of another trade un-
ion—the union to which Schal Bovis subcontracted the
work—the Funds cannot claim fringe benefit contributions
Nos. 14-3413 & 14-3336 3
for the work. The remaining issues are rendered moot by
these holdings, so we limit our discussion accordingly.
I. Background
Schal Bovis has been a party to collective bargaining
agreements with the Chicago Regional Council of Carpenters
(“the Union”) since it first signed an agreement in 1983 (“the
Memorandum”). The Memorandum and a Commercial Area
Agreement effective 2005 to 2008 (“the Agreement”), bound
Schal Bovis to several trust agreements which provided for
the creation of the Funds. The Agreement also limited Schal
Bovis’s ability to subcontract work “coming within the juris-
dictional claims of the Union,” that is, carpenter’s work. Ac-
cording to Article III, Section 3.2 of the Agreement, Schal Bo-
vis could not subcontract carpenter’s work, which the parties
refer to as “jurisdictional work,” to any subcontractor who
had not signed the Agreement (usually a non-union shop). If
Schal Bovis did, then Section 3.5 obliged Schal Bovis either to
require the non-union subcontractor to sign the Agreement
itself, or to keep track of the hours worked by the subcontrac-
tor and pay fringe benefit contributions to the Funds for those
hours. Article I, Section 1.1 of the Agreement described in
broad, expansive terms what the Union considered to be ju-
risdictional work, but concluded by stating: “However, the
Union agrees that it will not interfere with existing practices
of other unions affiliated with the Building Trades.” Doc. 13-
12 at 33.
A. The Litigation
In February 2009, the Funds conducted an audit of Schal
Bovis’s books covering the years 2006 and 2007. Based on the
audit, the Funds claimed and demanded $8 million in unpaid
4 Nos. 14-3413 & 14-3336
fringe benefit contributions, liquidated damages, and interest
for 36 claims of work that Schal Bovis allegedly subcontracted
to non-union shops. Over the next two years, through corre-
spondence between the parties, the Funds reduced their
claims from 36 to eight for a total of $1.25 million in unpaid
contributions, exclusive of interest and liquidated damages.
In February 2011, the Funds filed suit seeking payment for
the eight remaining claims. Early on, however, they withdrew
four of the eight claims, leaving a total of $203,000 in allegedly
unpaid contributions. In a brief two-page order, the district
court granted summary judgment to the Funds on the four
remaining claims on the issue of liability only. It left the de-
termination of damages for later, allowing Schal Bovis to pre-
sent appropriate evidence on that issue. Since only two of the
four claims are at issue in this appeal, we limit our discussion
to those two. They concern work by Canac Kitchens and Ed-
ward Don & Company.
B. The Canac Claim
The Canac claim involved the installation of cabinetry, un-
disputedly within the Union’s jurisdiction. Schal Bovis admit-
ted that Canac did not have an agreement with the Union, but
presented evidence that it had required Canac to use union
labor and that Canac had used its sister company, Qualifit
Kitchens, which had used union labor. Schal Bovis argued
that, under the single-employer doctrine, the district court
should consider Schal Bovis to have contracted with a union
shop because Canac and Qualifit were essentially the same
company. Schal Bovis presented evidence that the companies
were owned by the same parent company, did business out
of the same office, considered themselves and held them-
Nos. 14-3413 & 14-3336 5
selves out to be the same company, and had a merged man-
agement chain. It also pointed out that Canac completed
Qualifit’s fringe benefit report forms and Canac paid the con-
tributions to the Funds from its own account. Alternatively,
Schal Bovis argued that, by refusing to withdraw the Canac
claim, the Funds were administering their ERISA plans arbi-
trarily because the Funds had withdrawn other claims under
identical circumstances, with no explanation for why they
were treating the Canac claim differently.
The district court acknowledged Schal Bovis’s single-em-
ployer argument, but dismissed it simply by stating that Schal
Bovis contracted with Canac, not Qualifit. It then held that
Schal Bovis presented insufficient evidence to demonstrate
that it had fulfilled its obligations under the agreement when
hiring non-union labor, specifically, its obligations to keep
track of the hours worked by the subcontractor and pay fringe
benefit contributions to the Funds for the hours worked. The
district court did not address Schal Bovis’s alternative argu-
ment that the Funds were arbitrarily enforcing their plans.
C. The Edward Don Claim
The work for the Edward Don claim involved the installa-
tion of fire protection systems and stainless steel kitchen
equipment. The stainless steel kitchen equipment was com-
prised of cooking equipment, hoods and ventilation systems,
counters and tops, and freezers. Edward Don subcontracted
the work to Reid’s Fire and Safety Equipment. Reid’s installed
the fire protection systems, which the Funds conceded was
not jurisdictional work. The stainless steel kitchen equipment
was installed by Reid’s sister company, RB Hoods, which was
a union signatory with the Sheet Metal Workers. RB Hoods
6 Nos. 14-3413 & 14-3336
used union labor from the Sheet Metal Workers and paid
fringe benefit contributions to the Sheet Metal Workers.
Schal Bovis argued that it was not liable for fringe benefit
contributions because the work subcontracted to Edward Don
was not jurisdictional work. The definition of jurisdictional
work in the Union’s collective bargaining agreement was
broad enough to encompass the installation of stainless steel
kitchen equipment. However, Schal Bovis argued that the Un-
ion was prevented from claiming the installation of stainless
steel kitchen equipment as jurisdictional work because the
work was an existing practice of the Sheet Metal Workers. Sig-
nificantly, Section 1.1 of the Agreement prevented the Union
from interfering with the existing practices of other unions.
As with the previous claim, Schal Bovis argued in the alterna-
tive that by insisting on contributions for the Edward Don
work, the Funds were administering their ERISA plans arbi-
trarily. After all, they had already withdrawn several claims
that would have interfered with other unions but gave no rea-
son why they refused to withdraw the Edward Don claim.
The district court found that work in the Edward Don
claim fit the Union’s broad definition of jurisdictional work.
The district court acknowledged that Schal Bovis had raised
the possibility that the Funds had exempted other similar
claims so as not to interfere with other unions. Nevertheless,
the district court found that Schal Bovis’s evidence of the cir-
cumstances of those exemptions was insufficient to demon-
strate that the Funds were required by Section 1.1 to exempt
the Edward Don claim. Instead, the district court reasoned
that the Union could have been granting individualized ac-
commodations.
Nos. 14-3413 & 14-3336 7
After the issue of liability was decided at summary judg-
ment, the parties agreed to determine damages by a bench
trial on written submissions alone. The district court entered
its judgment for damages in the total amount of $312,621.13.
Both parties appeal.
II. Analysis
A. Standard of Review
The parties dispute the applicable standard of review.
Schal Bovis argues that the usual standard of review applies,
that is, that we review a grant of summary judgment de novo,
with factual inferences construed in favor of the non-moving
party. Mazzei v. Rock-N-Around Trucking, Inc., 246 F.3d 956,
959 (7th Cir. 2001). Conversely, the Funds argue that the
proper standard of review for this case is clear error. The
Funds rely on Central States, Southeast & Southwest Areas Pen-
sion Fund v. Nagy, 714 F.3d 545, 549 (7th Cir. 2013), in which
we stated:
However, where, as here, there is no right to a jury trial
and the only issue before the district court is the char-
acterization of undisputed subsidiary facts, we have
held that the clear-error standard of review applies.
Put differently, in these sorts of ERISA cases, we re-
view mixed questions of law and fact under a clearly
erroneous standard.
Id. at 549 (citations and quotation marks omitted).
This application of the clear error standard originated
with Central States, Southeast & Southwest Areas Pension Fund
v. Slotky, 956 F.2d 1369, 1373 (7th Cir. 1992), and is unique to
our circuit. See French v. Wachovia Bank, N.A., 722 F.3d 1079,
1084–85 (7th Cir. 2013); Nagy, 714 F.3d at 549 n.1. The “sorts
8 Nos. 14-3413 & 14-3336
of ERISA cases” in which we used this standard primarily
concerned efforts by pension funds to recover from employ-
ers who withdrew from the funds, thereby triggering “with-
drawal liability” under the Multiemployer Pension Plan
Amendments Act of 1980, 29 U.S.C. § 1381. In those cases, the
facts were not in dispute, and the only question was whether
the defendant should be held liable because it was a “trade or
business” that was “under common control” with the with-
drawing employer. 29 U.S.C. § 1301(b)(1). See, e.g., Nagy, 714
F.3d at 546–47; Cent. States, Se. & Sw. Areas Pension Fund v.
Messina Prods., LLC, 706 F.3d 874, 884 (7th Cir. 2013); Cent.
States, Se. & Sw. Areas Pension Fund v. SCOFBP, LLC, 668 F.3d
873, 877 (7th Cir. 2011); McDougall v. Pioneer Ranch Ltd. P’ship,
494 F.3d 571, 575–77 (7th Cir. 2007); Cent. States, Se. & Sw. Pen-
sion Fund v. Personnel, Inc., 974 F.2d 789, 792 (7th Cir. 1992).
This case is not one of those “sorts of ERISA cases.” Nagy, 714
F.3d at 549. 1
Moreover, as explained below, the Canac claim involves
the issue of whether the district court committed legal error
1 We have been asked to extend Slotky’s standard to other circum-
stances, but have declined the invitations so far. In French v. Wachovia Bank,
N.A., 722 F.3d 1079 (7th Cir. 2013), we were asked to extend it to a case
involving Wisconsin trust law, but declined “to wade into the debate
[t]here because [w]e would affirm under either [the clear error or de novo]
standard.” Id. at 1085 (quotation marks omitted). In Jurcev v. Cent. Comm.
Hosp., 7 F.3d 618, 623 (7th Cir. 1993), we were asked to use the standard to
review a grant of summary judgment on a claim involving the Worker
Adjustment and Retraining Notification Act, 29 U.S.C. § 210l, et seq. We
similarly declined the invitation stating: “While this new standard causes
us some concern, we need not resolve any conflict between the competing
standards in this case because the class cannot prevail under either de novo
or clearly erroneous review.” Jurcev, 7 F.3d at 623.
Nos. 14-3413 & 14-3336 9
in its interpretation of the single-employer doctrine, so our re-
view of the single-employer question is necessarily de novo.
Messina Prods., 706 F.3d at 879 (declining to apply Slotky’s
standard because the issue involved a legal conclusion, which
is reviewed de novo); Frey v. E.P.A., 403 F.3d 828, 833 (7th Cir.
2005) (same); See also Cent. States, Se. & Sw. Areas Pension Fund
v. White, 258 F.3d 636, 640 (7th Cir. 2001) (same); Cent. States,
Se. & Sw. Areas Pension Fund v. Fulkerson, 238 F.3d 891, 894 (7th
Cir. 2001) (same). And, on the Edward Don claim, the ques-
tion is whether the district court misinterpreted the Agree-
ment; our review of its interpretation is therefore de novo as
well. Dugan v. R.J. Corman R. Co., 344 F.3d 662, 665 (7th Cir.
2003) (holding that we review de novo a district court’s inter-
pretation of a collective bargaining agreement that is clear as
written); Mazzei, 246 F.3d at 960; see also Church v. Gen. Motors
Corp., 74 F.3d 795, 798–99 (7th Cir. 1996) (declining to apply
Slotky’s standard because the determinative issues in the case
were matters of contract interpretation requiring de novo re-
view).
The Funds contend that Slotky nevertheless applies be-
cause Schal Bovis has not pointed to any specific facts in dis-
pute, the parties filed cross-motions for summary judgment,
and neither requested a jury trial. But these details do not alter
our duty to review the district court’s decision on those cross-
motions for summary judgment de novo and to construe all
inferences in favor of the party against whom the motion un-
der consideration was made. Tsareff v. ManWeb Servs., Inc., 794
F.3d 841, 844 (7th Cir. 2015) (conducting de novo review where
parties filed cross-motions for summary judgment and nei-
ther demanded a jury trial). Consequently, we review de novo
whether it was error for the district court to grant summary
judgment to the Funds on the issue of liability for the Canac
10 Nos. 14-3413 & 14-3336
and Edward Don claims, and we construe all inferences in fa-
vor of Schal Bovis.
B. The Canac Claim
Schal Bovis argues that the district court erred by granting
summary judgment to the Funds on the Canac claim because
Canac and Qualifit should have been considered the same
employer under the single-employer doctrine. The single-em-
ployer doctrine provides that “when two entities are suffi-
ciently integrated, they will be treated as a single entity for
certain purposes.” Moriarty v. Svec, 164 F.3d 323, 332 (7th Cir.
1998) (“Moriarty I”). If the two companies were a single entity,
then Schal Bovis would not have violated Section 3.2 of the
Agreement, because Canac utilized Qualifit for the work, and
Qualifit was a signatory to the Agreement. To determine if the
doctrine applies, we examine four factors: “(1) interrelation of
operations, (2) common management, (3) centralized control
of labor relations, and (4) common ownership.” Trs. of Pension,
Welfare & Vacation Fringe Ben. Funds of IBEW Local 701 v. Favia
Elec. Co., 995 F.2d 785, 788 (7th Cir. 1993). No single factor con-
trols; we must consider the “totality of the circumstances.” Id.
According to undisputed testimony of Canac’s general
manager, Nate Syens, Qualifit was the union arm of Canac
and performed all of Canac’s installation and service work.2
Both Canac and Qualifit were owned by Kohler Company.
The president of Kohler Company, K. David Kohler, was also
the president of Qualifit. Both companies did business out of
the same office, which was also a warehouse and showroom.
2
Syens testified that Canac at one time employed non-union service
technicians who were not employees of Qualifit, but that was several years
before the events giving rise to this case.
Nos. 14-3413 & 14-3336 11
As Canac’s general manager, Syens supervised three depart-
ment heads: an operations manager, an office manager, and a
sales manager. Canac’s operations manager, Ray Jacobson,
was responsible for the day-to-day operations of Qualifit. Ja-
cobson consulted with Syens on hiring, firing, and discipli-
nary decisions for Qualifit installers as needed. Canac ac-
counts payable personnel were responsible for completing
the monthly fringe benefit reports filed with the Funds on be-
half of Qualifit installers. The checks used to pay the fringe
benefit contributions to the Funds were drawn on Canac’s ac-
counts. When Qualifit performed the installation work for
Canac at issue here, 3 Qualifit received no subcontract or pur-
chase order from Canac, nor did Canac ever pay Qualifit for
the work performed. When asked why this was so, Syens re-
sponded that it was because they were the same company. Fi-
nally, when Kohler Company eventually closed Canac and
Qualifit, it was Syens who officially terminated Qualifit’s
agreement with the Union. This is a clear case of the single-
employer doctrine. See, e.g., Lippert Tile Co. v. Int’l Union of
Bricklayers & Allied Craftsmen, Dist. Council of Wis. & Its Local
5, 724 F.3d 939, 947–49 (7th Cir. 2013).
Nonetheless, the Funds argue that the single-employer
doctrine can only be used by plaintiffs as a sword to establish
liability, not by defendants as a shield against liability. There
3 The Funds dispute that Syens’s testimony established that Qualifit
installers performed the work at issue. They point to Syens’s admission on
cross-examination that he could not, without referencing time records, say
which specific installers performed the work, what hours they worked, or
whether their hours were reported accurately to the Funds. Syens’s inabil-
ity to recall, without referencing time records, such specific details for
work performed well over five years ago, does not controvert his general
testimony that Canac used Qualifit installers to perform the work.
12 Nos. 14-3413 & 14-3336
is nothing in the doctrine that mandates this limitation, and
such a limitation would be fundamentally unfair. Besides, we
have already held that a defendant can use the doctrine de-
fensively. In Moriarty v. Svec, 233 F.3d 955 (7th Cir. 2000) (“Mo-
riarty II”), we allowed the defendant to use the doctrine to ar-
gue that he did not owe contributions as an employee of one
company, because he was the principal owner of another
company which was found to be a single employer with the
first company. 4 We stated:
Moriarty successfully argued [in Moriarty I, 164 F.3d at
332–35,] that Home and WSL are a single organization
such that the employees of WSL would be considered
the employees of Home for purposes of contributions
to the funds under the CBA. Thus, [the defendant] is
correct that Moriarty is now estopped from arguing
that the single employer doctrine cannot be applied in
determining whether [the defendant] is an employee
of Home.
Id. at 962. The fact that it was the plaintiff who first used the
doctrine in Moriarty I does not diminish the fact that we al-
lowed the defendant to use it as a shield against liability in
Moriarty II.
The Funds further argue that we cannot hold that Canac
and Qualifit were a single employer because to do so would
be to render an impermissible advisory opinion. Neither
Canac nor Qualifit is a party to the lawsuit, and there was no
4We were unable to resolve the defendant’s argument ourselves be-
cause it relied on a factual determination not in the record. We directed
the district court to make the determination on remand. Moriarty II, 233
F.3d 955 at 963.
Nos. 14-3413 & 14-3336 13
dispute before the district court between Schal Bovis and
Canac or between the Funds and Canac. See Deveraux v. City
of Chicago, 14 F.3d 328, 330 (7th Cir. 1994). “The term ‘advisory
opinion’ is often just a conclusion; it is what you call a deci-
sion that does not resolve an actual case or controversy.” Peo-
ple of State of Ill. ex rel. Barra v. Archer Daniels Midland Co., 704
F.2d 935, 941 (7th Cir. 1983). The actual controversy here is
whether Schal Bovis can rely on Canac’s status as a single em-
ployer with Qualifit, a union signatory, so that Schal Bovis is
not liable to the Funds for subcontracting carpenter work to a
non-signatory. We can resolve this question and grant relief.
And, while our answer is not binding on Canac and Qualifit
should they choose to contest it in the future—were they ever
to come back into existence—our answer is binding on the
parties to this case.
The district court ruled that Schal Bovis could not rely on
the single-employer doctrine solely because Schal Bovis’s
subcontract was with Canac, not Qualifit. This was an error of
law. The single-employer doctrine can be used defensively to
determine that a company has subcontracted with a union
signatory despite having signed an agreement with a non-sig-
natory, just as it can be used offensively to determine that a
non-signatory is liable for the obligations of a union signa-
tory, despite the lack of a union agreement. Because Canac and
Qualifit were a single employer, and because Qualifit was
covered by a collective bargaining agreement with the Union,
Schal Bovis did not violate Section 3.2 of the Agreement by
assigning the work at issue to Canac. Therefore, Schal Bovis
was not required under Section 3.5 to keep track of the hours
worked by the installers and pay fringe benefit contributions
to the Funds for those hours.
14 Nos. 14-3413 & 14-3336
C. The Edward Don Claim
Schal Bovis argues that the district court erred by granting
summary judgment to the Funds on the Edward Don claim
because the work did not fall within the jurisdiction of the
Union. Specifically, Schal Bovis argues that the installation of
the stainless steel kitchen equipment by RB Hoods was the
work of the Sheet Metal Workers, not the Union. 5 Schal Bovis
acknowledges that the work fits into the Union’s broad defi-
nition of its jurisdiction found in Section 1.1 of the Agreement,
which
include[s], but [is] not limited to, the milling, fashion-
ing, joining, assembling, erection, fastening or disman-
tling of all material of wood, plastic, metal, fiber, cork,
and composition, and all other substitute materials; the
handling, erecting, installing and dismantling of ma-
chinery and equipment, hydraulic jacking and raising,
and the manufacturing of all material where the skill,
knowledge and training of the Employee are required
either through the operation of machine or hand tools.
Doc. 13-12 at 32. But, Schal Bovis argues that the definition is
limited by the provision at the end of Section 1.1 which pre-
vents the Union from claiming work within the established
jurisdiction of other unions. Again, that provision states:
“However, the Union agrees that it will not interfere with ex-
isting practices of other unions affiliated with the Building
Trades.” Id. at 33.
5
The Funds concede that the installation of fire protection systems by
Reid’s Fire and Safety Equipment was outside the Union’s jurisdiction.
Nos. 14-3413 & 14-3336 15
Schal Bovis presented undisputed evidence that the instal-
lation of stainless steel kitchen equipment was the existing
practice of the Sheet Metal Workers. The evidence included a
prior jurisdictional agreement with the Plumbers Union and,
most notably, an arbitration award from a 2010 jurisdictional
dispute between Sheet Metal Workers Local 73 and Carpen-
ters Local 58 of the Chicago Regional Council of Carpenters.
The arbitrator found that the prevailing trade practice was
that the installation of stainless steel kitchen equipment be-
longed to the Sheet Metal Workers. Schal Bovis bolstered its
argument by pointing out that, in this case, the Funds with-
drew another claim when Schal Bovis presented them with
evidence during the audit that the work in that claim, which
was also the installation of stainless steel kitchen equipment,
was done by the Sheet Metal Workers.
Without expressly referencing the limiting provision of
Section 1.1, the district court treated the provision as if it was
ambiguous by looking only to the extrinsic evidence of the
Funds’ previously withdrawn claims. The district court
acknowledged that the Funds had withdrawn other claims as
a result of concessions to the jurisdiction of other unions.
However, the court found that the evidence of those with-
drawals showed nothing more than individualized accom-
modations. According to the district court, the evidence did
not demonstrate that the previous withdrawals were a result
of any binding contract provision. This was error.
Where an agreement is clearly written, a court should not
look to outside evidence to interpret the agreement. Dugan,
344 F.3d at 665. If an agreement lends itself to one reasonable
interpretation only, it is not ambiguous and can be construed
as a matter of law. Mazzei, 246 F.3d at 960; Ill. Conference of
16 Nos. 14-3413 & 14-3336
Teamsters & Emp’rs Welfare Fund v. Mrowicki, 44 F.3d 451, 459
(7th Cir. 1994). The limiting provision of Section 1.1 is unam-
biguous when viewed in the context in which it is found, that
is, union jurisdiction. The Union’s definition of its jurisdiction
is so expansive that it encompasses what is traditionally the
work of other unions. This can lead to jurisdictional disputes
with other unions over which union will perform the work in
question. This, in turn, can cause serious problems for an em-
ployer who signs multiple collective bargaining agreements,
each of which requires the employer to assign work based on
union jurisdiction. An innocent employer, needing to choose
between two different unions with overlapping jurisdictions,
will find itself “caught between the devil and the deep blue.”
N.L.R.B. v. Radio & Television Broad. Eng. Union, 364 U.S. 573,
575 (1961) (quotation marks omitted). By assigning work to
one union, it will necessarily violate its collective bargaining
agreement with another. For this reason, it is not in an em-
ployer’s interest to agree to a collective bargaining agreement
with an overly broad jurisdiction definition. Section 1.1’s lim-
iting provision works to alleviate this concern. It confirms for
the employer that the Union does not intend for its jurisdic-
tion to swallow that of other unions because the Union agrees
it will not claim work that other unions have established as
their own.
Thus, the limiting provision at the end of Section 1.1 of the
Agreement prevents the Funds from claiming contributions
for work performed by another union if it is the existing prac-
tice of the other union to do that work, i.e., if the work is con-
sidered within the established jurisdiction of the other union.
As mentioned above, Schal Bovis presented evidence demon-
strating that the installation of stainless steel kitchen equip-
ment was within the jurisdiction of the Sheet Metal Workers.
Nos. 14-3413 & 14-3336 17
Furthermore, the company that ultimately completed the
work, RB Hoods, was a union signatory with Sheet Metal
Workers Local 20. 6
The Funds attempted to counter this evidence by present-
ing thirteen letters of assignment from three contractors
which purportedly assigned the work of installing stainless
steel kitchen equipment to the Union. The Funds’ submission
is insufficient to counter Schal Bovis’s evidence for a number
of reasons. First, it is debatable whether the affiant through
whom the letters were introduced based his statements on
personal knowledge as required by Fed. R. Civ. P. 56(c)(4).
Second, none of the thirteen letters assigned the work of in-
stalling stainless steel kitchen equipment. One of the letters,
from 1994, assigned the work of installing “coun-
ter tops/shelving/kitchen equipment,” but it does not state
whether the work involved stainless steel equipment. Dist.
Doc. 29 at 60. The remaining letters, which were dated 2010
or undated, either assigned only the loading and unloading
of stainless steel kitchen equipment or the installation of
“owner supplied equipment and fixtures.” Id. at 48–61. Fi-
nally, it does not matter whether the Union has been assigned
the installation of stainless steel kitchen equipment in the past
or is assigned such work presently. It does not even matter
whether the work is exclusively the work of the Sheet Metal
Workers, which the Union disputes. What matters is whether
it is the existing practice of the Sheet Metal Workers to install
stainless steel kitchen equipment. It is undisputed that the
6 Schal Bovis subcontracted the work to Edward Don, who subcon-
tracted the work to Reid’s Fire and Safety Equipment. Reid’s had its sister
company, RB Hoods, complete the work. The president and sole owner of
Reid’s is also the president and sole owner of RB Hoods.
18 Nos. 14-3413 & 14-3336
work is the existing practice of the Sheet Metal Workers. Con-
sequently, the limiting provision of Section 1.1 of the Agree-
ment prevents the Funds from demanding contributions for
the work in the Edward Don claim.
III. Conclusion
In conclusion, Schal Bovis is not liable for contributions for
the work performed in the Canac claim because Canac was a
single employer with Qualifit; hence, Schal Bovis did not sub-
contract jurisdictional work to a non-signatory. Schal Bovis is
also not liable for contributions for the work performed in the
Edward Don claim because the Funds are prevented from
claiming contributions for such work by the limiting provi-
sion of Section 1.1 of the Agreement. Accordingly, we
REVERSE the district court’s grant of summary judgment in
favor of the Funds on the Canac and Edward Don claims, and
REMAND the case for further proceedings consistent with
this opinion.