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TRUSTEES OF THE UNITED ASSN. FULL-TIME SALARIED OF

August 1, 1986

TRUSTEES OF THE UNITED ASSOCIATION FULL-TIME SALARIED OFFICERS AND EMPLOYEES OF LOCAL UNIONS, DISTRICT COUNCILS, STATE AND PROVINCIAL ASSOCIATIONS PENSION PLAN, Plaintiffs,
v.
STEAMFITTERS LOCAL UNION 395, Defendant



The opinion of the court was delivered by: PARKER

 (Granting Plaintiffs' Motion for Summary Judgment)

 Barrington D. Parker, Senior District Judge:

 This case arises under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (1982), and section 502 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132 (1982). Plaintiffs are trustees of a pension fund ("Fund") established for the benefit of employees of local unions of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("United Association"). Defendant is Local 395 of the Steamfitters Union, an affiliate of United Association. Plaintiffs claim that defendant owes the Fund past due contributions on behalf of a former employee.

 The matter came before a United States Magistrate on cross-motions for summary judgment. The parties have taken cross-appeals from the Magistrate's Report and Recommendation on the motions to this Court. For the reasons set forth below, the Court affirms in part and reverses in part the Magistrate's findings.

 BACKGROUND

 Effective January 1, 1967, the United Association established the Fund pursuant to the United Association Constitution. Section 41(b) of the Constitution provides that all "full-time, salaried officers and employees" are eligible for coverage and that the general officers of the Fund are authorized to establish all of its terms and conditions. Accordingly, an Agreement and Declaration of Trust was promulgated, which establishes certain guidelines governing the operation of the Fund. The Agreement defines a "full-time" employee to be anyone receiving a salary of more than $2,000 per year. "Salary" is defined as gross wages minus certain deductions. The Agreement further provides that an "officer" may be either an elected or appointed official. The operative terms and eligibility requirements of the Fund were provided in a December 30, 1966 letter sent to the United Association locals. That letter indicated that, while employees of welfare or pension funds -- rather than of the locals -- were not entitled to Fund coverage ordinarily, they would be so covered if, exclusive of remuneration from the welfare or pension fund, they received at least $2,000 per year for work done for a local.

 From 1967 to 1983, defendant employed Donald Blair as its business agent. From November 1968 until August 1982, defendant also employed Karl Gaiser as an assistant business agent. Mr. Gaiser also worked part-time for the Fund. While defendant remitted Fund contributions for Mr. Blair, they neither made contributions for Gaiser nor listed him as an eligible employee on its contribution reports. When Mr. Gaiser left defendant's employment, he contacted the Fund through a lawyer and inquired about pension benefits. Alerted to the possible existence of an additional covered employee, the Fund made inquiry of defendant. Upon receiving further information the Fund demanded contribution reports and past due payments for Mr. Gaiser. Defendant responded by asserting that it did not believe that Mr. Gaiser was a covered employee and that, in any event, it felt that Gaiser's eligibility for a pension from the Fund was somehow independent from its obligation to contribute to the Fund on his behalf.

 In its briefs before the Magistrate and this Court, defendant asserts that its obligation to contribute to the Fund is governed solely by the United Association Constitution, and not by the Trust Agreement. Under its view of Section 41(b) of the Constitution, Mr. Gaiser was not a covered employee. Moreover, argues defendant, plaintiffs' claims are barred by the applicable statute of limitations. Plaintiffs, in turn, counter that the Constitution vests authority to interpret Section 41(b) solely in the Fund officers and that the statute of limitations was tolled by defendant's fraudulent concealment of Gaiser's employment.

 THE MAGISTRATE'S REPORT AND RECOMMENDATION

 A. Tolling the Statute of Limitations

 In reviewing plaintiffs' claim that the applicable statute of limitations *fn1" was tolled by defendant's concealment of Gaiser's employment, the Magistrate quite properly looked to the three elements of the fraudulent concealment doctrine, as set forth in Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1 (D.C. Cir. 1984), cert. denied sub nom. Brennan v. Hobson, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985). These elements are (1) some fraudulent or deceptive course of conduct on defendant's part designed to conceal facts underlying plaintiffs' cause of action; (2) plaintiffs' unawareness of those facts; and (3) plaintiffs' exercise of due diligence in an effort to uncover their claim. Id. at 33-36.

 1. Fraudulent or deceptive conduct

 The Magistrate assumed that defendant's conduct fell into that class of wrongs described in Hobson as being "self-concealing." See 737 F.2d at 33. In particular, she found that the submission of remittance reports listing only Mr. Blair as a covered employee constituted misleading and deceptive information, amounting to fraudulent concealment under the rationale of Waggoner v. Dallaire, 649 F.2d 1362, 1368 (9th Cir. 1981). The Magistrate found that such misinformation, ...


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