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National Electrical Annuity Plan v. Henkels and Mccoy, Inc.

United States District Court, E.D. Michigan, Southern Division

December 4, 2019

NATIONAL ELECTRICAL ANNUITY PLAN, Plaintiff,
v.
HENKELS AND MCCOY, INC., Defendant.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE.

         In an amended complaint filed January 31, 2019, Plaintiff National Electrical Annuity Plan (“NEAP”) alleges that Defendant Henkels and McCoy, Inc. (“H&M”) failed to make required Employee Retirement Income Security Act (“ERISA”) contributions pursuant to the terms of the parties' collective bargaining agreement. NEAP requests contributions for work performed for Verizon related to the installation of equipment and fibers to support a 5G network. The parties filed cross motions for summary judgment on the issue of whether the relevant collective bargaining documents obligate H&M to make contributions for work performed on the Verizon project. The motions have been briefed, and the court concludes that a hearing is not necessary. See E.D. Mich. 7.1(f)(2). For the reasons stated below, the court will deny NEAP's motion for summary judgment and will grant H&M's motion.

         I. BACKGROUND

         The court draws the following facts from the parties' Joint Statement of Material Facts. (Joint Statement ECF No. 36.)[1]

         A. The Agreement

         In 1995, the International Brotherhood of Electrical Workers (“IBEW”) entered into an agreement (“the Agreement”) with H&M to perform “teledata” work across the United States. The scope of the Agreement covers:

low voltage construction, installation, maintenance and removal of teledata facilities (voice, data and video) including outside plant, telephone and data inside wire, interconnect, terminal equipment, central offices, PABX, fiber optic cable and equipment, railroad communications, micro waves, V-SAT, by-pass, CATV, WAN (Wide area networks), LAN (local area networks), and ISDN (integrated systems digital network).

         The Agreement specifically describes the process for terminating or amending any portion of the Agreement. Section 1.02 describes the process for termination:

(a) Either party desiring to change or terminate this Agreement must notify the other, in writing, at least 90 days prior to the anniversary date.
(b) Whenever notice is given for changes, the nature of the changes desired must be specified in the notice.
(c) The existing provisions of the Agreement shall remain in full force and effect until a conclusion is reached in the matter of proposed changes.
(d) Notice by either party of a desire to terminate this Agreement shall be handled in the same manner as a proposed change.

         Additionally, Section 1.03 requires that changes to the Agreement be in writing:

Any such change or supplement agreed upon shall be reduced to writing, signed by the parties hereto, and submitted to the International Office of the IBEW for approval, the same as this Agreement.

(Joint Statement ¶¶ 3-8.)

         B. The 2011 Appendix

         H&M entered into supplements to the Agreement with IBEW local unions, namely, Local Union No. 17 (“Local 17”) and Local Union No. 876 (“Local 876”). Together, Local 17 and Local 876 comprise the “Local Unions”. (Joint Statement ¶ 9.)

         In early 2011, the Local Unions and H&M signed an Appendix to the Agreement (the “2011 Appendix”). The 2011 Appendix is one of several separate documents modifying the Agreement for work done within Michigan. The original term of the 2011 Appendix lasted from November 29, 2010, through November 27, 2011, and continued on a year-to-year basis unless changed or terminated. The 2011 Appendix contained its own requirements for terminating or amending the 2011 Appendix:

(A) Either party desiring to change or terminate these Appendixes must notify the other, in writing, at least 90 days prior to the anniversary date.
(B) Whenever notice is given for changes, the nature of the changes desired must be specified in the notice.
(C) The existing provisions of the Appendixes shall remain in full force and effect until a conclusion is reached in the matter of proposed changes.
(D) Notice by either party of a desire to terminate these Appendixes shall be handled in the same manner as a proposed change.

         The 2011 Appendix also provided for contributions to NEAP at a rate of 16.5 % of the gross monthly labor payroll and provisions for a 401(k) ...


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