Flynn, John v. Dick Corp

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2006 Decided March 20, 2007

No. 05-7187

JOHN FLYNN ET AL.,
APPELLANTS

v.

DICK CORPORATION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 03cv01718)

Ira R. Mitzner and Joseph E. Kolick, Jr. argued the cause for
the appellants.
Charles F. Walters and Jessica R. Hughes argued the cause
for the appellee.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
appellants, John Flynn (Flynn) et al., trustees of the Bricklayers
& Trowel Trades International Pension Fund (IPF or the Fund),
 2

sued Dick Corporation (Company) under the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et
seq., seeking employee benefit contributions, id. § 1145, based
on the Company’s construction projects in Florida. In response,
Dick Corporation challenged its liability under a Florida
collective bargaining agreement (CBA), claimed that the
requested contributions violated the Labor Management
Relations Act (LMRA), 29 U.S.C. § 186, and asserted that the
IPF failed to exhaust required arbitration procedures. The
district court agreed that no Florida CBA bound the Company
and that the requested contributions violated the LMRA,
granting summary judgment to Dick Corporation. Thereafter,
the IPF filed a motion for reconsideration, which the district
court granted in part—recognizing a genuine issue of material
fact as to the existence of a valid Florida CBA—but it
reaffirmed its conclusion that the contributions violated the
LMRA and thus affirmed its grant of summary judgment to the
Company. The Fund appeals. We reverse the district court,
concluding that the requested contributions are valid under the
LMRA, and remand for further proceedings.
I.
The factual history of this contract dispute is cumbersome
but essential to a proper understanding of the issues raised on
appeal. In 2002, Dick Corporation, a Pennsylvania-based
construction company, became the general contractor on two
construction projects in Florida. The Company decided to
subcontract the craftwork involved in the Florida projects. Its
chosen subcontractors, like all of the subcontractors submitting
bids on the two projects, did not employ members of the
International Union of Bricklayers and Allied Craftworkers
(BAC). In the past, however, the Company had used its own
employees to perform the type of work it subcontracted on the
 3

two projects. Its employees were members of local bricklayer
unions, including BAC Local 1 of Northern New England, with
which the Company had a CBA. Under the CBA, it paid
employee benefit contributions into the Fund, thereby entitling
its employees to benefits under the Fund. See Second Decl. of
David F. Stupar, Exs. 3 & 4, reprinted in Joint Appendix (JA) at
540, 542.
In December 1989 the Company signed an Independent
Agreement (1989 IA) with the local BAC affiliates in eastern
Massachusetts, agreeing “to be bound by all the terms and
conditions of the effective Collective Bargaining Agreement and
any . . . successor agreements.” Independent Agreement
Between Dick Corp. and Dist. Council of E. Mass. Bricklayers
& Allied Craftsmen Local Unions (Dec. 1, 1989) ¶ 1, reprinted
in JA at 11. The CBA referenced in the 1989 IA was executed
in August 1989 (1989 CBA).1 Similarly, in September 2000,
Dick Corporation signed another Independent Agreement (2000

1
As a Pennsylvania corporation, the Company was not a member
of the Building Trades Employers’ Association of Boston and Eastern
Massachusetts, Inc. or the Mason Contractors Association of
Massachusetts, Inc., both of which signed the CBAs with the
Massachusetts BAC affiliates. See Agreement Between the
Bricklayers & Allied Craftsmen E. Mass. Dist. Council Local Unions
and Building Trades Employers’ Ass’n of Boston & E. Mass., Inc. and
Mason Contractors Ass’n of Mass., Inc., reprinted in JA at 15–69;
Agreement Between the Bricklayers & Allied Craftworkers Local #1
Mass. and Building Trades Employers’ Ass’n of Boston and E. Mass.,
Inc. and The Mason Contractors’ Ass’n of Mass., Inc., reprinted in JA
at 76–128. Thus, for Massachusetts construction projects, “Dick
Corporation signed the independent agreement in which they agreed
to abide by the local CBA then in effect.” Appellee’s Br. at 3 n.3.
 4

IA), this time with the local BAC affiliate in western
Massachusetts. See Independent Agreement Between Dick
Corporation and Bricklayers & Allied Craftworkers Local 1
Mass., reprinted in JA at 71–74. The 2000 IA bound the
Company to a CBA executed in 1992 (1992 CBA) and any
successor CBA. Eventually, the 1989 CBA referenced in the
1989 IA was succeeded by an August 2002 CBA (August 2002
CBA) with the local BAC affiliate in eastern Massachusetts,
while the 2000 CBA tied to the 2000 IA was succeeded by a
September 2002 CBA (September 2002 CBA).2
Both successor CBAs—the August 2002 CBA and the
September 2002 CBA—contain a “traveling contractor’s
clause,” which requires that a signatory employer with “any
work [covered by the CBA] to be performed outside of the
geographic area” of the CBA and “within the geographic area
covered by an Agreement with another affiliate of [the BAC] . . .
abide by the full terms and conditions of the Agreement in effect
in the job site area.” JA 195, § 10; see also JA 410, art. I-D.
Pursuant to both clauses, the IPF sued the Company for failure
to make employee contributions consistent with the terms of a
Florida CBA between the local BAC in the area of Dick
Corporation’s Florida projects and the local employers of BAC
members in that area. See Flynn v. Dick Corp., 384 F. Supp. 2d
189, 192 (D.D.C. 2005). The Fund claimed that the traveling

2
Before the district court, the Company maintained that it was not
a party to the successor CBAs. See Flynn v. Dick Corp., 384 F. Supp.
2d 189, 194–96 (D.D.C. 2005). The district court, however, found
that the August 2002 CBA and the September 2002 CBA were valid
successor agreements binding Dick Corporation, see id., and the
Company does not challenge this conclusion on appeal, see Appellee’s
Br. at 10–43.
 5

contractor’s clauses bound Dick Corporation to the Florida CBA
and, accordingly, the Fund charged the Company with violating
the Florida CBA’s subcontracting clause, which prohibits
signatory employers from using non-union subcontractors for
work performed within the area covered by the Florida CBA.
See Pls.’ Mot. for Summ. J. at 13–14. Dick Corporation, the
Fund asserted, was “barred from evading this contribution
obligation through the use of non-union subcontractors.” Id.
Following discovery, the district court granted the
Company’s motion for summary judgment. See Dick Corp., 384
F. Supp. 2d at 203.3 The district court found that the plain
language of the September 2002 CBA’s traveling contractor’s
clause unambiguously bound Dick Corporation to any Florida
CBA (between local BAC affiliates and local employers of BAC
members) that was in existence in the area—and at the time—of
the Company’s projects. Id. at 196–99. The district court then
concluded that there was no valid CBA in existence in Florida
obligating Dick Corporation to pay employee benefits into the
Fund under a traveling contractor’s clause. Id. at 199–202. First,
the court determined that the document the Fund submitted as
the applicable Florida CBA did not constitute an enforceable
agreement because it lacked provisions covering wages and
contract duration. Id. at 200. Instead, the court said, the
document constituted only a standard form or draft agreement,
“completed and made enforceable only with the addition of an
addendum detailing benefit payments and contractual
ratification by real parties.” Id. “By design, therefore, the
Florida CBA [was] not an agreement in effect (namely, a legally

3
With the parties’ consent, the district court had referred the case
to a magistrate judge, see Appellants’ Br. at 2 n.1, who authored the
order in this case, see Dick Corp., 384 F. Supp. 2d at 191.
 6

binding agreement), but merely provide[d] a framework for
one.” Id.
In addition, the district court found that the LMRA
precluded the contributions the Fund sought. See id. at 200–02.
First, the skeletal nature of the agreement submitted by the Fund
failed to provide the “detailed basis” required for lawful
contributions from an employer to a trust fund under section
302(c)(5)(B) of the LMRA. See id. at 200–01; 29 U.S.C.
§ 186(c)(5)(B). The district court also held that the
contributions sought by the IPF were not for the “sole and
exclusive benefit” of Dick Corporation’s employees because the
Company’s Florida projects were performed entirely by the
“subcontractors’ ineligible non-union employees” and no Dick
Corporation employee was eligible to benefit from any
contributions based on the work of subcontractors on the Florida
projects. Dick Corp., 384 F. Supp. 2d at 201–02. Given the
IPF’s failure to establish that the requested contributions were
for the “sole and exclusive benefit” of the Company’s
employees, the district court found the contributions prohibited
by the LMRA. Id. at 202; 29 U.S.C. § 186(c)(5)(A).4
The IPF moved for reconsideration, challenging the district
court’s conclusion that there was no valid CBA in effect in
Florida and, in any event, not one that provided a “detailed
basis” for Fund contributions at the time of the Company’s

4
The district court rejected the Company’s assertion that the IPF
was procedurally barred from filing suit based on the Florida CBA for
failure to exhaust the CBA’s required arbitration provision. See Dick
Corp., 384 F. Supp. 2d at 202. The court reasoned that the IPF could
not be bound by any arbitration clause because no enforceable CBA
existed in Florida at the time of the Company’s projects. Id.
 7

Florida projects. See Pls.’ Mot. for Recons. The district court
ultimately agreed with the IPF that it had misconstrued
affidavits submitted by the Florida BAC and that the
affidavits—and the rate tables from CBA appendices the Fund
submitted with them—had in fact contained the required
“detailed basis” for Fund contributions along with evidence of
an enforceable Florida CBA. See Mem. Order on Mot. for
Recons., reprinted in JA at 664–65. The district court
“vacate[d]” its grant of summary judgment to Dick Corporation
to the extent it was based on the absence of either an enforceable
CBA or a detailed basis for benefit contributions under the
LMRA. See id. at 665. It nonetheless again granted summary
judgment to the Company because the requested contributions
were not for the “sole and exclusive benefit” of Dick
Corporation’s employees as required by the LMRA. See id. at
665–66. The IPF now appeals.
II.
We review the district court’s grant of summary judgment de
novo, see Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8,
13 (D.C. Cir. 2005), applying the same standards as the district
court and drawing all inferences from the evidence in favor of
the non-movant, see Shekoyan v. Sibley Int’l, 409 F.3d 414,
422–23 (D.C. Cir. 2005). We may affirm only if there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. See Mylan Labs., Inc.
v. Thompson, 389 F.3d 1272, 1278–79 (D.C. Cir. 2004). We
review the district court’s ruling on a motion for reconsideration
pursuant to Rule 59(e) for abuse of discretion. See Messina v.
Krakower, 439 F.3d 755, 758–59 (D.C. Cir. 2006). We interpret
collective bargaining agreements under federal law, see, e.g.,
Walsh v. Schlecht, 429 U.S. 401, 406–07 (1977) (interpreting
CBA subcontractor’s clause under “federal law principles”), and
 8

“a question concerning the proper interpretation of the plain
language of a contract is a question of law” subject to our de
novo review, see Smith, Bucklin & Assocs., Inc. v. Sonntag, 83
F.3d 476, 479 (D.C. Cir. 1996).
The Fund’s claim to benefit contributions is based on section
515 of ERISA, which provides:
Every employer who is obligated to make contributions
to a multiemployer plan . . . under the terms of a
collectively bargained agreement shall, to the extent not
inconsistent with law, make such contributions in
accordance with the terms and conditions of such plan or
such agreement.
29 U.S.C. § 1145 (emphasis added). This provision solves the
problem created if an employer defaults on its obligation to fund
a multiemployer pension plan, thereby forcing other
participating employers to make larger contributions in order to
cover the default. See Flynn v. R.C. Tile, 353 F.3d 953, 958
(D.C. Cir. 2004). Under section 515, an employee benefit plan
is analogous to a holder in due course. See Benson v. Brower’s
Moving & Storage, Inc., 907 F.2d 310, 314 (2d Cir. 1990)
(Because “benefit plans must be able to rely on the contribution
promises of employers . . . Congress placed employee benefit
plans in a position . . . analogous to a holder in due course.”).
Indeed, defenses available to an employer attempting to avoid
contributing to a benefit plan are ordinarily limited to claims
that the agreement allegedly obligating the employer to pay
benefits is either invalid or does not apply to the employer. See
DeVito v. Hempstead China Shop, Inc., 38 F.3d 651, 653 (2d
Cir. 1994).
An agreement obligating an employer to contribute to a
pension fund is not valid to the extent that such contribution is
 9

“inconsistent with law.” See 29 U.S.C. § 1145. For example,
“[s]ection 302 of the LMRA generally forbids an employer from
contributing money to a labor organization.” Wash. Post v.
Wash.-Balt. Newspaper Guild, Local 35, 787 F.2d 604, 606
(D.C. Cir. 1986) (citing 29 U.S.C. § 186(a)). The general
prohibition is subject to nine limited exceptions, see 29 U.S.C.
§ 186(c), and, “[i]f any one of these exceptions applies, the
general prohibition of § 302 does not operate,” Wash. Post, 787
F.2d at 606.
A. Effect of Florida CBA
In general, an employer’s obligation to make benefit
contributions under section 515 of ERISA arises from a
collective bargaining agreement in the geographic area in which
the employer’s work is performed. Dick Corporation signed no
CBA in Florida, where the two relevant construction projects
were to be undertaken. The Company instead signed two
independent agreements—and, by their operation, two
CBAs—in Massachusetts. See JA 10–13, 71–74; Dick Corp.,
384 F. Supp. 2d at 194–96. Both successor CBAs contain a
traveling contractor’s clause, which, as noted earlier, requires
that a signatory employer with “any work [covered by the CBA]
to be performed outside of the geographic area” of the CBA and
“within the geographic area covered by an Agreement with
another affiliate of [the BAC] . . . abide by the full terms and
conditions of the Agreement in effect in the job site area.” JA
195.
The Fund reads the traveling contractor’s clause in the
August 2002 CBA to require the Company to contribute to the
 10

Fund in accordance with the Florida CBA. See Appellants’
Reply Br. at 13.5 The clause provides:
When the Employer has any work specified in . . . this
Agreement to be performed outside of the
geographic area covered by this Agreement and within
the geographic area covered by an Agreement with
another affiliate of [the BAC], the Employer agrees to
abide by the full terms and conditions of the Agreement
in effect in the job site area.
JA 195 (emphasis added). Two different district courts have
given conflicting interpretations to the “unambiguous” meaning
of identical traveling contractor’s clauses. Compare Flynn v.
Beeler Barney Assocs. Masonry Contractors, Inc., No. 02-1411,
2004 WL 3712630, at *6 (D.D.C. Aug. 10, 2004) (clause
unambiguously bound employer to “the terms of [the jobsite]

5
In contrast, the district court looked to the traveling contractor’s
clause in the September 2002 CBA to bind Dick Corporation. See
Dick Corp., 384 F. Supp. 2d at 196, 199. Indeed, the district court
suggested in dicta that the August 2002 CBA provision did not bind
the Company. See id. at 196–99 n.7. Both parties recognize,
however, that the September 2002 CBA clause was meant to be
identical to the August 2002 CBA clause. See Appellee’s Br. at 10;
Appellants’ Reply Br. at 13 & n.14. The wording of the two clauses
differs because of a scrivener’s error in the September 2002 CBA. See
id. In fact, the Fund admitted that “the uncorrected language of the
[September 2002 CBA] makes no sense.” Pls.’ Reply Mem. in
Support of Mot. for Summ. J. at 4 & n.5; see Appellants’ Reply Br. at
13. The record before us, then, leads us to conclude that the district
court erroneously found that the September—instead of the
August—2002 CBA bound the Company to the Florida CBA. See
Dick Corp., 384 F. Supp. 2d at 196, 199.
 11

jurisdiction’s BAC collective bargaining agreement, even
though the employer never signed the agreement with that BAC
affiliate”), with Trs. of the Bricklayers & Allied Craftworkers,
Local 5 v. Charles T. Driscoll Masonry Restoration Co., 165 F.
Supp. 2d 502, 511 (S.D.N.Y. 2001) (holding that, on its face,
clause bound employer only to CBA employer in fact signed).6
We believe the clause is ambiguous. Indeed, as the Sixth
Circuit noted in construing a virtually identical clause, “the first
sentence of the BAC Traveling Contractor clause is susceptible
to more than one interpretation” because the “phrase ‘within the
area covered by an agreement with another affiliate of the
[BAC]’ could refer to an agreement between [the employer] and
the BAC affiliate, or it could refer to an agreement between any
employer and the BAC affiliate.” Trs. of the B.A.C. Local 32
Ins. Fund v. Ohio Ceiling & Partition Co., 48 Fed. App’x 188,
195 (6th Cir. Oct. 4, 2002) (emphasis added). Given the
ambiguity, we may consider the intent of the parties to interpret
the meaning of the August 2002 CBA’s traveling contractor’s
clause. See, e.g., United States v. Ins. Co. of N. Am., 131 F.3d
1037, 1042 (D.C. Cir. 1997).
Unlike the statements of the union president in Driscoll
Masonry—accepting a narrow interpretation of the clause—and
those of the company president in Ohio Ceiling—with a similar
narrow understanding of the clause, see Ohio Ceiling, 48 Fed.
App’x at 195–96—there is little extrinsic evidence of intent
here. A Massachusetts BAC official submitted an affidavit
regarding the reason the BAC inserts traveling contractor’s

6
The district court in Driscoll Masonry also noted that the local
union’s president agreed with the court’s narrow interpretation of the
clause. See Driscoll, 165 F. Supp. 2d at 511.
 12

clauses into all collective bargaining agreements. See Decl. of
Ronald Marvin at 4–5, reprinted in JA at 287–88. His statement
reflects a broad understanding of the clause, binding signatory
employers to the CBAs of local BAC affiliates—even if the
employer does not sign the local CBA—in order to “prevent . . .
employers from operating non-union in foreign jurisdictions.”
Id. at 287.
Moreover, “it would make little sense to interpret the . . .
clause as only applying when the employer works in a
jurisdiction where that same employer has signed a separate
CBA with another BAC affiliate because, if the employer was
signatory to an agreement in the jobsite area, there would be no
need for a traveling contractors clause.” Beeler, 2004 WL
3712630 at *7 (emphasis in original). Indeed, a narrowly
construed traveling contractor’s clause would simply reimpose
the employer’s already existing contractual obligation. Such an
interpretation would render the traveling contractor’s clause
meaningless and, absent evidence of such intent, parties “ought
not be presumed to have included in their agreement a
meaningless provision.” Martinsville Nylon Employees Council
Corp. v. NLRB, 969 F.2d 1263, 1267 (D.C. Cir. 1992). As a
consequence, and absent evidence of any contrary intent, we
believe the August 2002 CBA’s traveling contractor’s clause
binds Dick Corporation to a CBA in force at a “foreign” jobsite
even if the Company is not a signatory thereto.7

7
Although the interpretation of ambiguous contract language,
particularly if it requires consideration of extrinsic evidence, is a
question of fact, cf. Am. First Inv. Corp. v. Goland, 925 F.2d 1518,
1521–22 (D.C. Cir. 1991) (if contract terms ambiguous “the contract
cannot be interpreted as a matter of law and the case must be
remanded so that the fact-finder can determine the parties’ true
 13

B. Effect of Section 302 of LMRA
The Florida CBA at issue requires an employer to contribute
pension and retirement benefit payments into the Fund for union
work performed within the territorial jurisdiction of the CBA.
JA 603. While the LMRA prohibits employer contributions to
a labor organization, section 302 provides an exception “with
respect to the payment . . . of any money . . . in satisfaction of a
judgment of any court or a decision or award of an arbitrator.”
29 U.S.C. § 186(c)(2). The IPF asserts that the benefit
contributions Dick Corporation owes pursuant to the Florida
CBA are lawful under this exception because the Company
breached the CBA by hiring non-union subcontractors on its
Florida projects. See Appellants’ Br. at 11; Pls.’ Mot. for
Summ. J. at 13–14. The Florida CBA provides:
The Employer agrees that neither he nor any of his
subcontractors on the jobsite, will contract or
subcontract work coming under the trade or territorial
jurisdiction of [the BAC], to be done at the site of
construction . . . except to a person, firm or corporation
bound to this agreement.
Pls.’ Mot. for Summ. J. at 13. Dick Corporation admitted that
it employed non-union subcontractors on its Florida projects.

intent”), Dick Corporation submitted no counter-affidavit challenging
the Fund’s affidavits as required on summary judgment, see Fed. R.
Civ. P. 56(e) (“When a motion for summary judgment is made and
supported [by affidavits], an adverse party[,] . . . by affidavits . . . ,
must set forth specific facts showing that there is a genuine issue for
trial.”). We are therefore able to determine the meaning of the
traveling contractor’s clause contained in the August 2002 CBA.
 14

See Decl. of Raymond Crothers at JA 152.8 As a result of the
Company’s breach, the Fund claims, it is entitled—pursuant to
the section 302(c)(2) exception—to the benefit contributions the
Company would have been required to pay absent the breach.
See Appellants’ Br. at 16.
In Washington Post v. Washington-Baltimore Newspaper
Guild, Local 35, 787 F.2d 604 (D.C. Cir. 1986), we upheld an
arbitrator’s award against a LMRA challenge, finding section
302(c)(2) exempted the award from section 302(a)’s general
prohibition. See id. at 606–07, 609. The arbitrator found that
The Washington Post breached a collective bargaining
agreement by failing to pay union dues from the salaries of
columnists—viewing the columnists as not covered by the
CBA—and ordered the newspaper to reimburse the union fund
for the dues not paid on account of the breach. See id. at 605.
On appeal, we concluded that the arbitrator’s order came within
the section 302(c)(2) exception. See id. at 606–07.
Dick Corporation, however, argues that Washington Post
and section 302(c)(2) of the LMRA are inapplicable because the
IPF has no underlying court judgment or arbitration award
establishing the Company’s breach of the Florida CBA, see
Appellee’s Br. at 27–29, relying on Jackson Purchase Rural
Elec. Coop. Ass’n v. Local Union 816, Int’l Bhd. of Elec.
Workers, 646 F.2d 264, 268 (6th Cir. 1981). In that case, the

8
If, contrary to the Company’s position, we conclude that it is
subject to the Florida CBA by virtue of the traveling contractor’s
clause, the Company does not contest that its conduct breached the
Florida CBA. See Appellee’s Br. at 27–31 (challenging applicability
of section 302(c)(2) exception to damages from breach rather than fact
of breach).
 15

court refused to enforce the arbitration award because the only
alleged contractual breach—the breach upon which the
arbitrator relied—involved an otherwise illegal provision in the
collective bargaining agreement. See id. at 266, 267–68 (illegal
union dues “check-off” provision). The problem in Jackson
Purchase was not the lack of an underlying judgment; instead,
there was no breach of a valid, legally enforceable contractual
provision. Indeed, Washington Post distinguished Jackson
Purchase on this ground, recognizing that “[t]he opinion says
nothing about an arbitrator’s power to award a union the dues it
lost as a consequence of the employer’s breach of a valid
collective bargaining agreement.” Washington Post, 787 F.2d
at 608.
Section 302(c)(2) requires no more than “vigorous and
genuine litigation” and the court’s (or arbitrator’s) determination
of the merits of the alleged contractual breach. Id. at 607 (“The
Post will pay this money on the order of the arbitrator, after
vigorous and genuine litigation.”). From a practical standpoint,
Dick Corporation’s claim that an underlying judgment is
necessary to invoke section 302(c)(2) would be cumbersome and
duplicative, requiring two separate sets of litigation: an initial
determination of breach and a second enforcement proceeding.
Instead, once the court finds a valid contractual provision
breached, the “satisfaction of a judgment” language of section
302(c)(2) is met and the same court may award damages for the
violation. See Trs. of Int’l Bhd. of Teamsters Local 531 Sick &
Welfare Fund v. Marangi Bros., Inc., 289 F. Supp. 2d 455, 463
(S.D.N.Y. 2003) (“If defendants are found to have breached the
CBA, plaintiffs would be entitled to an award of damages
because Section 302(c)(2) specifically excludes the application
of § 302(a) . . . .”) (citing Washington Post, 787 F.2d at 607).
Here, the IPF alleges, and the Company concedes, that Dick
 16

Corporation breached the Florida CBA by hiring non-union
subcontractors. See Pls.’ Mot. for Summ. J. at 13–14; Decl. of
Raymond Crothers at JA 152. The Fund is entitled to damages
resulting from the breach in the form of benefit contributions “in
a sum equal to that which they would have received if the
agreement between the defendant and the union had been fully
performed by all parties.” Trs. of the Teamsters Constr.
Workers Local 13, Health & Welfare Trust Fund for Colo. v.
Hawg N Action, Inc., 651 F.2d 1384, 1386–87 (10th Cir. 1981);
see also Chicago Painters & Decorators Pension, Health &
Welfare, and Deferred Sav. Plan Trust Funds v. Karr Bros.,
Inc., 755 F.2d 1285, 1290 (7th Cir. 1985) (breaching employer
“required . . . to pay . . . the amount that [employer] would have
been required to contribute to the trust funds if it had complied
with the collective bargaining agreements”).9
C. Effect of Arbitration Clause of Florida CBA
Next, Dick Corporation argues that the IPF may not bring
suit without first complying with the compulsory arbitration
provision contained in the Florida CBA. See Appellee’s Br. at
41. As the Supreme Court has recognized, however, the
“presumption of arbitrability is not a proper rule of construction
in determining whether arbitration agreements between the
union and the employer apply to disputes between trustees and
employers.” Schneider Moving & Storage Co. v. Robbins, 466

9
Although the district court did not rule on the applicability of
section 302(c)(2), the IPF raised the issue of Dick Corporation’s
breach before the district court. See Pls.’ Mot. for Summ. J. at 13–14.
Because contractual breach is a legal question that was raised below
and also on appeal, see Appellants’ Br. at 11–16, we may, exercising
de novo review, reach the merits of the breach claim.
 17

U.S. 364, 372 (1984). Thus, “in the absence of an unambiguous
expression by the parties to the contrary, pension funds are not
required to exhaust collective bargaining agreement arbitration
procedures prior to filing an action for collection of delinquent
contributions to the pension fund.” Flynn v. Interior Finishes,
Inc., 425 F. Supp. 2d 38, 48 n.11 (D.D.C. 2006).
As both third-party beneficiaries of the Florida CBA’s trust
fund provisions and trustees of an employee-benefit fund, the
IPF is entitled to file suit for delinquent contributions free from
the CBA’s arbitration requirements. See, e.g., Schneider, 466
U.S. at 370–72 (finding compulsory arbitration inapplicable
where third-party beneficiaries invoking CBA provisions are
trustees of employee-benefit funds); Robbins v. Lynch, 836 F.2d
330, 333 (7th Cir. 1988) (“A pension or welfare trust is a third-
party beneficiary of the collective bargaining agreement.”). To
the extent that Dick Corporation relies on Interior Finishes to
argue that the Fund is barred from filing suit absent exhaustion
because the trustees “ ‘are standing in the shoes of the
union,’ ”Appellee’s Br. at 41 (quoting Interior Finishes, 425 F.
Supp. 2d at 49), the Company misapprehends the holding. The
defendant employer in Interior Finishes did “not challenge the
[Fund’s] ability to seek, on its own behalf, unpaid contributions
to the Fund without exhausting . . . arbitral remedies.” Interior
Finishes, 425 F. Supp. 2d at 48 (emphasis in original). Indeed,
given the Supreme Court’s holding in Schneider, that argument
could not have prevailed. See id. at 48 n.11 (quoting Schneider,
466 U.S. at 372). Instead, in Interior Finishes the defendant
employer challenged the Fund’s ability to bring suit on behalf of
the BAC without first arbitrating such claims. Id. at 49.
Because union claims are not protected under Schneider, see 466
U.S. at 372, the district court in Interior Finishes dismissed the
claims made on behalf of the BAC for failure to exhaust arbitral
 18

remedies, 425 F. Supp. 2d at 50, but allowed the suit to continue
with regard to the claims made on behalf of the Fund itself, see
id. at 49–50.
In this case, the Fund brought suit on its own behalf to
collect unpaid contributions, see Appellants’ Br. at 3 & n.2, and
the district court properly rejected Dick Corporation’s
exhaustion defense, see Dick Corp., 384 F. Supp. 2d at 202. On
the other hand, to the extent the IPF sued to recover union dues,
those claims are outside Schneider’s holding and must be
dismissed.
D. Existence of Enforceable Florida CBA
Finally, Dick Corporation challenges the district court’s
determination that there is a genuine issue of material
fact—precluding summary judgment—whether an enforceable
Florida CBA existed at the time of its Florida construction
projects. The Company asserts that the district court erred in
relying on proffered evidence related to the Florida CBA in light
of the Fund’s alleged discovery violations. See Appellee’s Br.
at 14–26. Indeed, when the Company requested a copy of the
Florida CBA, including the CBA’s specific wage and
contribution rates, during discovery, see JA 267, the Fund
produced only a standard Florida CBA form (with blanks not
filled in), JA 267–68; 129–50, and Dick Corporation claims that
the Fund failed to provide the specific information needed to
establish the existence of an enforceable CBA until the
Company moved for summary judgment, see Appellee’s Br. at
16. Because of the Fund’s failure to produce, the Company
argues, the district court should have excluded any rate
 19

information under Federal Rule of Civil Procedure 37(c)(1).10
Instead the district court erroneously relied on the evidence and
thus, Dick Corporation asserts, erroneously found an
enforceable Florida CBA. Absent an enforceable contract, the
Company continues, the Fund’s contribution arguments fail for
lack of an obligation. See Appellee’s Br. at 14–18.11
In response, the Fund claims that it provided the “substantial
justification” for non-disclosure necessary to avoid Rule
37(c)(1). See Appellants’ Reply Br. at 20–21 n.27; Pls.’ Sur-
Reply to Def.’s Reply Br. in Supp. of Mot. for Summ. J. First,
the Fund argues that it did supply the requested wage and
contribution rates during discovery, thereby providing the
information needed to establish an enforceable CBA. See
Appellants’ Reply Br. at 21 n.27; Decl. of Seth Richardson,
reprinted in JA at 525. Second, the Fund showed that some of
the requested information was within the control of a Florida
BAC official. See Decl. of Robert Blanco at 1–2, reprinted in
JA at 474–75 (describing Florida BAC official’s providing
Florida CBA to Fund). Finally, before the district court, the
Fund explained “that the only reason why the documents at issue
were not gathered and produced earlier . . . was because Dick
Corporation chose to wait until its summary judgment motion to
argue for the very first time that the Florida [CBA] was illegal
and unenforceable because it did not contain the governing

10
Rule 37(c)(1) provides that “[a] party that without substantial
justification fails to disclose information required by Rule 26(a) or
26(e)(1), . . . is not, unless such failure is harmless, permitted to use as
evidence . . . on a motion any . . . information not so disclosed.”
11
Absent an enforceable agreement, no contractual breach exists
to trigger section 302(c)(2)’s exception.
 20

rates.” Pls.’ Sur-Reply to Def.’s Reply Br. in Supp. of Summ.
J. at 2 (emphasis in original).
In general, the district court enjoys wide discretion in
managing discovery, and, accordingly, “[w]e review the district
court’s discovery ruling[s] for abuse of discretion” only. See
Diamond Ventures, LLC v. Barreto, 452 F.3d 892, 898 (D.C.
Cir. 2006). This deference extends to the district court’s
imposition of discovery sanctions. See Jankins v. TDC Mgmt.
Corp., 21 F.3d 436, 445 (D.C. Cir. 1994); see also Fed. R. Civ.
P. 37(c)(1) (“In addition to or in lieu of [exclusion of evidence],
the court, on motion and after affording an opportunity to be
heard, may impose other appropriate sanctions.”). Here, the
district court used the challenged evidence to revise its summary
judgment order in response to the Fund’s Rule 59(e)
reconsideration motion. See JA 664–65. We also review a
district court’s decision to alter or amend a judgment under Rule
59(e) for abuse of discretion. See Messina, 439 F.3d at 758–59.
Both Dick Corporation and the Fund presented arguments to
the district court regarding discovery sanctions. Nevertheless,
the district court did not expressly decide the discovery dispute.
Instead, it simply used the challenged evidence in deciding on
reconsideration “that the Court erred when it found that
evidence of the detailed wage scales and contribution rates
necessary to complete the contract had not been submitted into
the record.” JA 665 (citing Decl. of Robert Blanco at JA
474–82). The district court therefore found that the existence of
an enforceable CBA in effect at the time of Dick Corporation’s
 21

Florida projects “presented a genuine issue of disputed material
fact sufficient to withstand summary judgment.” Id.12

12
Despite the wage scale and contribution evidence, the district
court on reconsideration remained “unable to find on the basis of the
existing evidence that the Florida agreement was in fact ‘in effect’ in
the local jobsites.” Mem. Order on Mot. for Recons. at JA 665. In its
summary judgment order, the district court had “relied both on the
lack of any signed agreement in the record and on the apparent lack of
any evidence that the necessary . . . wage scales [and] contribution
rates . . . had been agreed to and incorporated into the template CBA
for any Florida jurisdiction.” Id. at 664 (footnote omitted). Because
its Rule 59(e) ruling was based on the record evidence regarding wage
scales and contribution rates, the only remaining basis for its summary
judgment grant was the lack of the parties’ signatures. While the
document provided by the Florida BAC affiliate did not contain
signatures, it referenced the Union Contractors and Subcontractors
Association as the employer party to the agreement. See JA 512, 514
(citing “[t]he attached ‘Industrial Agreement’ between
BRICKLAYERS AND ALLIED CRAFTSMEN, LOCAL #1,
FLORIDA, UNION CONTRACTORS, AND SUBCONTRACTORS
ASSOCIATION, INC.”). Further, Robert Blanco, the President of the
Florida BAC, stated that the wage and contribution rates in the
submitted material represented the “Memoranda of Agreement”
between the local BAC and employer groups when Dick Corporation’s
Florida projects were in progress. See Decl. of Robert Blanco at JA
476–79. Thus, the material the Fund submitted as well as Blanco’s
declaration identified the parties to the contested Florida CBA. Cf.
Henke v. U.S. Dep’t of Commerce, 83 F.3d 1445, 1450 (D.C. Cir.
1996) (“A contract has certain essential elements, to wit, competent
parties, lawful subject matter, legal consideration, mutuality of assent
and mutuality of obligation.”). Given this evidence regarding the
parties’ signatures, on remand the district court should revisit whether
the Florida CBA was in effect at the Company’s Florida jobsites.
 22

Moreover, the district court did not “deliberate[ly]” reject
the proffered evidence in its initial summary judgment ruling as
a discovery sanction but simply overlooked the evidence
“[a]wash in [the] sea of unsigned and unlabeled agreements and
contracts” in the case. Id. at 665 n.4. While we owe deference
to the district court’s discovery decisions, we cannot defer to a
decision that has not been made and we therefore remand for the
district court to exercise its discretion in deciding the Rule
37(c)(1) matter. See EEOC v. Nat’l Children’s Ctr., Inc., 98
F.3d 1406, 1410–11 (D.C. Cir. 1996) (remanding for district
court to exercise discretion by “mak[ing] a finding as to whether
‘good cause’ exist[ed] for restricting the use of the depositions
in this case”).

To sum up, we reverse the district court’s holding that the
benefit contributions sought by the Fund are prohibited under
the LMRA because Dick Corporation’s breach of the Florida
CBA—to which the Company is bound by operation of the
August 2002 CBA’s traveling contractor’s clause—brings the
requested benefit contributions within the exception of section
302(c)(2) of the Labor Management Relations Act, 29 U.S.C.
§ 186(c)(2). While we agree with the district court that the
Fund’s claims are not subject to the Florida CBA’s arbitration
requirement, to the extent the Fund’s suit seeks to recover on
behalf of the BAC as well, such claim is subject to compulsory
arbitration and therefore must be dismissed. We remand to the
district court its Rule 59(e) ruling—finding evidence of an
enforceable Florida CBA—to consider the Company’s
outstanding Rule 37(c)(1) motion. Finally, we remand for
further proceedings consistent with this opinion the issues of the
applicability of the Florida collective bargaining agreement at
 23

the Company’s Florida jobsites and the appropriate award of
damages.
So ordered.