Trustees of the Iron Workers Defined Contribution Pension Fund, Iron Workers Local… v. Next Century Rebar, LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0181p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TRUSTEES OF THE IRON WORKERS DEFINED
CONTRIBUTION PENSION FUND, IRON WORKERS LOCAL
25 PENSION FUND, IRON WORKERS HEALTH FUND OF
EASTERN MICHIGAN, IRON WORKERS LOCAL 25
VACATION PAY FUND, and IRON WORKERS
APPRENTICESHIP FUND OF EASTERN MICHIGAN,
Plaintiffs-Appellees,
v.
NEXT CENTURY REBAR, LLC,
Defendant - Appellant.
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Nos. 23-1919/24-1046
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:21-cv-13041—Nancy G. Edmunds, District Judge.
Argued: July 25, 2024
Decided and Filed: August 15, 2024
Before: MOORE, COLE, and MATHIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Bryan R. Walters, VARNUM LLP, Grand Rapids, Michigan, for Appellant. Laura
H. Lindsay, HESSIAN & MCKASY, P.A., Minneapolis, Minnesota, for Appellees. ON
BRIEF: Neil E. Youngdahl, VARNUM LLP, Grand Rapids, Michigan, Maureen Rouse-Ayoub,
VARNUM LLP, Novi, Michigan, for Appellant. Laura H. Lindsay, William A. Cumming,
HESSIAN & MCKASY, P.A., Minneapolis, Minnesota, for Appellees.
>

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Trustees of the
Iron Workers Defined Contribution Pension Fund, et al. v.
Next Century Rebar, LLC
Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Next Century Rebar, LLC (“NCR”) worked
on a chemical project within the jurisdiction of the Local Union Number 25 (“Local 25”).
Because Local 25 did not have enough iron workers to fulfill the project’s needs, NCR hired iron
workers affiliated with out-of-state unions, specifically Local Union Numbers 416 and 846
(“Local 416” and “Local 846,” respectively). For the duration of the project, NCR made benefits
contributions to the funds associated with the out-of-state iron workers’ unions. In 2021, funds
affiliated with Local 25—Iron Workers Health Fund of Eastern Michigan, Iron Workers Local
25 Vacation Pay Fund, and Iron Workers Apprenticeship Fund of Eastern Michigan (the “Local
25 Funds”)—conducted an audit and determined that NCR had failed to make benefits
contributions on behalf of the out-of-state employees to the Local 25 Funds. NCR contested this
finding and refused to pay the contributions, explaining that it had made contributions on behalf
of these employees to the funds affiliated with the out-of-state unions, as opposed to the Local 25
Funds.
The Local 25 Funds filed suit under 29 U.S.C. § 1145, arguing that they are entitled to
benefits contributions for the out-of-state employees that performed work in its jurisdiction. The
Local 25 Funds filed a motion for summary judgment, which NCR opposed. The district court
granted the motion and issued judgment awarding the Local 25 Funds $1,787,300.75 in unpaid
contributions, $143,075.41 in interest, and $288,598.80 in liquidated damages. Thereafter, the
Local 25 Funds moved for attorney fees and costs, and the district court amended the judgment
to include $18,233.15 in costs and $99,812.25 in attorney fees. NCR filed timely notices of
appeal from the judgment and the amended judgment, which have been consolidated before this
court. On appeal, NCR argues that the district court applied the incorrect summary-judgment
standard, the district court improperly granted summary judgment despite genuine disputes of
material fact related to the damages calculation, and the district court abused its discretion by
declining to award NCR a setoff in the amount it contributed to the out-of-state funds.

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For the reasons that follow, we AFFIRM in part and REVERSE in part and
REMAND this case for further proceedings.
I. BACKGROUND
NCR installs reinforcing steel nationwide. R. 38-2 (Grantham Decl. ¶ 2) (Page ID #848).
Between June 2020 and October 2021, NCR worked on a Chemical Bank project in Detroit,
Michigan (the “Michigan Project”), which required workers from the Local 25 union. Id. ¶¶ 5–6,
8 (Page ID #848–49). Local 25 did not have enough iron workers to meet the needs of NCR’s
Michigan Project, so Local 25 instructed NCR to hire out-of-state iron workers. Id. ¶ 8 (Page ID
#849). NCR then hired iron workers who were members of Local 846 and Local 416. Id. ¶¶ 8–9
(Page ID #849). For the duration of the Michigan Project, NCR paid the Local 846 and Local
416 workers using the wage rates set by their respective out-of-state unions. Id. ¶ 16 (Page ID
#850). The relevant Local 25 base hourly wage was $28.82; whereas the Local 416 base wage
was $41.00 per hour in 2020 and $43.00 per hour in 2021, and the relevant Local 846 base wage
was $18.00 per hour. Id. ¶¶ 11–14 (Page ID #849).1
Local 25 benefits contributions are calculated using hours worked, hours paid, or wage
rates, and the calculation differs depending on the type of benefit fund (pension, vacation, etc).
See generally R. 38-3 (Local 25 CBA at art. V, §§ 1–10) (Page ID #868–70). For the workers on
the Michigan Project, NCR made benefits contributions to the home union of each employee,
meaning that NCR made contributions to the out-of-state funds for the Local 416 and Local 846
employees using the rates established in those unions’ collective bargaining agreements. R. 38-2
(Grantham Decl. ¶ 10) (Page ID #849); see also R. 38-10 (Grantham Dep. at 24:25–25:19) (Page
ID #1184).2 NCR determined how to make contributions on behalf of the out-of-state employees
by consulting with each of the unions. For example, Local 846 instructed NCR to pay “any
1The base wages differ based on the employees’ position (journeyman, foreman, etc.), see, e.g., R. 38-18
(Local 25 Rate Schedules at 1) (Page ID #1238), and the employees’ years of experience, see R. 38-7 (Reeves Dep.
at 46:7–9) (Page ID #1001); however, for purposes of simplicity—and because the parties refer only to the above-
cited wage rates—we use these rates as the relevant wages from each union, unless we specify otherwise.
2NCR paid the Local 416 and Local 846 employees’ vacation-fund contributions to Local 25. R. 38-10
(Grantham Dep. at 25:4–13) (Page ID #1184); R. 38-7 (Reeves Dep. at 33:4–11) (Page ID #988).

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Page 4
disparity in the benefit package between Local 25 and Local 846” by adding it to the workers’
hourly wage, and NCR complied by increasing the Local 846 employees’ wage from, for
example, $18.00 to $54.12 per hour for journeymen. R. 38-2 (Grantham Decl. ¶¶ 18–20) (Page
ID #850). Additionally, NCR asked Local 25 what benefits NCR must contribute to Local 25 for
the out-of-state workers on the Michigan Project. R. 38-5 (7/29/2020 Email at 1) (Page ID
#909). Anthony Ramos, a Local 25 business agent, instructed NCR to make benefits
contributions, except for vacation contributions and dobie dues,3 “to the Locals that supplied the
ironworkers on the Michigan Project, namely Local 846 and Local 416.” R. 38-2 (Grantham
Decl. ¶ 10) (Page ID #849).4
In 2021, the Local 25 Funds conducted an audit of NCR’s contributions and determined
that there were $941,358.46 in unpaid contributions—as well as an additional sum of liquidated
damages—for the period of June 2020 through March 2021. R. 36-5 (Reeves Decl. ¶¶ 6–8)
(Page ID #429–30); R. 36-9 (Audit at 1–4) (Page ID #546–49).5 NCR contested the audit’s
conclusion that there were unpaid contributions to the Local 25 Funds because NCR had already
made contributions on behalf of the relevant employees to their home unions. R. 38-20 (NCR
Ltr. at 1) (Page ID #1255). The auditor was aware of NCR’s contributions to the out-of-state
funds and inquired about whether that should be factored into the final calculation of unpaid
contributions. See R. 38-7 (Reeves Dep. at 31:18–33:16) (Page ID #986–88); R.38-15
(9/14/2021 Email at 1) (Page ID #1227). The audit was not adjusted based on the out-of-state
contributions. R. 38-16 (9/15/2021 Email at 1) (Page ID #1230).
3Dobie dues are “a fee that [employers] pay to [Local] 25 to let [the employer] use [workers] from another
area or another union.” R. 38-10 (Grantham Dep. at 18:13–14) (Page ID #1183).
4The Local 25 Funds—and Ramos—dispute that this instruction was given. See R. 36-4 (Ramos Decl. ¶ 7)
(Page ID #426); D. 20 (Appellee Br. at 5–6, 35).
5The Local 25 Funds updated the audit during litigation based on documents that NCR produced in
discovery. See R. 36-5 (Reeves Decl. ¶ 9) (Page ID #430). The final calculation totaled $1,787,300.75 in unpaid
contributions, as well as an additional sum of liquidated damages. See id. ¶ 11 (Page ID #431–32). NCR challenges
the total estimate, including the updated estimate produced during litigation. See D. 18 (Appellant Br. at 35–36).

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A. The Governing Agreements
There are two contracts pertinent to this appeal: the Local 25 Collective Bargaining
Agreement (the “Local 25 CBA”) and the International Agreement. NCR is a signatory to both.
See R. 38-3 (Local 25 CBA at 32) (Page ID #894); R. 38-4 (Int’l Agreement at 6) (Page ID
#907).
The International Agreement states, in relevant part, that NCR “agrees to abide by the
work rules, pay the scale of wages and benefits, work the schedule of hours, and abide by the
terms and conditions of employment in force and effect in the Local Union in which the
Employer is performing or is to perform work.” R. 38-4 (Int’l Agreement § 6(A)) (Page ID
#903). For all non-key employees,6 NCR “agrees to make timely payments into all fringe benefit
funds in accordance with the applicable Local Union collective bargaining agreement,” including
the “pension[] . . . [and] vacation” funds. Id. § 6(C) (Page ID #904). If NCR fails “to make
remittances to any fringe benefit funds . . . [it] shall [be] subject . . . to all penalty, liquidated
damage, interest, attorneys and expert fees, and other amounts due and owing pursuant to the
Local Union collective bargaining agreement[].” Id. § 6(D) (Page ID #904). “Under no
circumstances,” however, “shall there be a request for a payment of double fringe benefit
amounts (benefits paid to more than one Local Union’s funds) as a result of work performed
under this agreement.” Id. Thus, NCR was required to make its benefits contributions related to
the out-of-state employees working in the Local 25 jurisdiction “in accordance with the
applicable Local Union collective bargaining agreement,” id. § 6(C); see also id. § 6(A), which
was the Local 25 CBA.
The Local 25 CBA explains that benefits contributions are due monthly and are
calculated based on the type of fund. See generally R. 38-3 (Local 25 CBA at art. V, § 1–10)
(Page ID #868–88). “For each employee” working in the Local 25 jurisdiction, employers are
required to contribute to the pension fund “an amount equal to the percentages as outlined in
6Although this was at issue below, no party argues on appeal that the relevant employees were designated
as “Key Employees.”

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Article III.” Id. at art. V, § 4 (Page ID #868). And “[f]or each employee” working in the Local
25 jurisdiction, employers are required to contribute to the vacation fund “an amount equal to the
percentages as outlined in Article III of the Employee’s gross earnings before taxes.” Id. at art.
V, § 6 (Page ID #869). Article III directs employers to contact a union representative for the
relevant wage rate schedules. Id. at art. III (Page ID #867). The parties have provided the Local
25 Rate Schedules for the relevant period. See R. 38-18 (Local 25 Rate Schedules at 1) (Page ID
#1238).
Finally, although not central to the dispute here, there is also a reciprocity agreement
among the local funds under which benefit contributions can be transferred from the fund
covering the jurisdiction where the work was performed (the “Work Funds”) to the fund
covering the employee’s home jurisdiction (the “Home Funds”). R. 36-2 (Sawhill Decl. ¶ 9)
(Page ID #417); see also R. 36-17 (Reciprocity Agreement at 2–3) (Page ID #647–48). Under
the reciprocity agreement, the employee must make an “affirmative election” that they wish to
transfer contributions and then the Work Funds determine which contributions will be transferred
to the Home Funds. R. 36-2 (Sawhill Decl. ¶ 9) (Page ID #417). Even when employees elect to
transfer their benefits, the employer makes its benefits contributions to the Work Funds, and the
Work Fund then effectuates the transfer. Id. Here, there were some out-of-state employees who
affirmatively declined to have their pension contributions transferred to their Home Funds. R.
39-3 (Reciprocity Elections at 833–62) (Page ID #1276–88).
B. The Proceedings Below
After NCR declined to make contributions to Local 25 on behalf of the out-of-state
employees, the Local 25 Funds filed suit in federal court alleging that NCR breached the Local
25 CBA and violated 29 U.S.C. § 1145. R. 1 (Compl. ¶¶ 23–27) (Page ID #6–7). The Local 25
Funds requested $1,006,731.18 in unpaid contributions, as well as liquidated damages, interest,
court costs, audit and other collection costs, and attorney fees. Id. ¶ 27 (Page ID #7). NCR
moved for leave to file a third-party complaint against Local 846. R. 16 (Mot. for Leave at 1–5)
(Page ID #152–56). The district court granted the motion and instructed NCR to file the third-

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Iron Workers Defined Contribution Pension Fund, et al. v.
Next Century Rebar, LLC
Page 7
party complaint by October 30, 2022. R. 29 (10/18/2022 D. Ct. Order at 3) (Page ID #338).
NCR did not file a third-party complaint.
Thereafter, the Local 25 Funds filed a motion for summary judgment. See R. 36 (Mot.
for Summ. J. at 1–5) (Page ID #379–83). The district court issued a notice indicating that it
intended to resolve the summary-judgment motion without oral argument. See R. 37 (Notice at
1) (Page ID #819). After the motion was fully briefed, the district court issued an order granting
summary judgment to the Local 25 Funds and finding NCR liable for $1,787,300.75 in unpaid
contributions, $143,075.41 in interest, and $288,598.80 in liquidated damages. R. 43 (9/17/2023
D. Ct. Order at 8–10) (Page ID #1351–53). The district court’s unpaid contribution award—and
therefore the entirety of the monetary damages calculation in this order—was based solely on the
Local 25 Funds’ audit report. Id. at 8–9 (Page ID #1351–52). The district court entered
judgment, R. 44 (J. at 1) (Page ID #1357), and NCR filed a notice of appeal, R. 46 (Notice of
Appeal at 2) (Page ID #1362).
The Local 25 Funds then filed a motion for attorney fees and costs in the district court.
See R. 48 (Mot. to Am. J. at iii) (Page ID #1367). The magistrate judge recommended that the
district court grant the motion in part, R. 51 (Rep. & Rec. at 14) (Page ID #1508), and the district
judge adopted the recommendation, awarding the Local 25 Funds $18,233.15 in costs and
$99,812.25 in attorney fees, R. 52 (12/20/2023 D. Ct. Order at 1–2) (Page ID #1510–11). The
district court entered an amended judgment that included attorney fees and costs. R. 53 (Am. J.
at 1) (Page ID #1512). NCR filed a second notice of appeal. R. 54 (Notice of Appeal at 2) (Page
ID #1515). This court consolidated the appellate dockets. D. 24 (Order at 1).
II. ANALYSIS
NCR contends that the district court erred in three ways: (1) the district court applied an
incorrect summary-judgment standard, D. 18 (Appellant Br. at 21–28); (2) the district court
erroneously determined that there were no genuine issues of material fact as to damages, id. at
29–36; and (3) the district abused its discretion by declining to grant NCR’s requested equitable
relief, id. at 36–44.

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We review de novo a district court’s grant of summary judgment and a “district court’s
interpretation of the contractual agreements between the parties.” Orrand v. Scassa Asphalt,
Inc., 794 F.3d 556, 560–61 (6th Cir. 2015). The district court’s decision to decline to award
equitable relief is reviewed for abuse of discretion. Liberty Life Assurance Co. of Bos. v. Gilbert,
507 F.3d 952, 959 (6th Cir. 2007). Abuse of discretion occurs when the “district court
committed ‘a clear error of judgment, such as applying the incorrect legal standard, misapplying
the correct legal standard, or relying upon clearly erroneous findings of fact.’” ACLU v.
McCreary County, 607 F.3d 439, 450 (6th Cir. 2010) (quoting In re Ferro Corp. Derivative
Litig., 511 F.3d 611, 623 (6th Cir. 2008)).
A. The Summary-Judgment Standard
NCR first contends that the district court failed to apply the more rigorous summary-
judgment standard that governs when the movant bears the burden of proof at trial. D. 18
(Appellant Br. at 21–28). “[T]he standard that a movant must meet to obtain summary judgment
depends on who will bear the burden of proof at trial.” Pineda v. Hamilton County, 977 F.3d
483, 491 (6th Cir. 2020). This is because at trial a plaintiff typically bears the burden to prove
each element, whereas a defendant need only “disprove” one element for the plaintiff’s claim to
fail. See 10A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 2727.1 (4th ed. 2016).
“[W]here the moving party has the burden [of proof] . . . his showing must be sufficient
for the court to hold that no reasonable trier of fact could find other than for the moving party.”
Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (emphasis omitted) (quotations
omitted); see also 11 JAMES WILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE
§ 56.40(1)(c) (3d ed. 2010) (“When the movant bears the burden of persuasion at trial, the
movant must produce evidence that would conclusively support its right to a judgment after trial
should the nonmovant fail to rebut the evidence.”). But “[w]hen the moving party does not have
the burden of proof on the issue, he need show only that the opponent cannot sustain his burden
at trial,” which can be done by identifying the absence of evidence. Calderone, 799 F.2d at 258–
59 (quotations omitted). Put differently, when the moving party bears the burden of proof, their

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“initial summary judgment burden is higher in that it must show that the record contains
evidence satisfying the burden of persuasion and that the evidence is so powerful that no
reasonable jury would be free to disbelieve it.” Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d
1036, 1056 (6th Cir. 2001) (quotations omitted)).
The district court did not cite the above-quoted language that is specific to a summary-
judgment movant who bears the burden of proof at trial. See D. 43 (09/17/2023 D. Ct. Op. at 5)
(Page ID #1348). But even if the district court cited the incorrect standard—by identifying the
standard applicable to movants who do not bear the burden of proof—it is not clear that the
district court applied the incorrect standard. For example, the court determined that the Local 25
Funds “suppl[ied] evidence to support” its damages calculation in the form of the audit and a
declaration from the auditor. Id. at 9 & n.3 (Page ID #1352). The district court’s reasoning is at
least consistent with the requirement that the Local 25 Funds must meet a “higher” summary-
judgment burden by “show[ing] that the record contains evidence satisfying the burden of
persuasion.” Surles v. Andison, 678 F.3d 452, 455–56 (6th Cir. 2012) (quoting Cockrel, 270
F.3d at 1056).
Even if the district court had applied the wrong standard, however, we decline to resolve
the appeal on that basis. “Because we review de novo the grant of summary judgment and the
parties have briefed the underlying issues, we will squarely address the merits of this case, rather
than” reversing based on the purported use of an incorrect summary-judgment standard. Pearce
v. Chrysler Grp. LLC Pension Plan, 893 F.3d 339, 346 (6th Cir. 2018).
B. The ERISA Claim
On appeal, the parties do not dispute the district court’s liability ruling; instead, the
parties focus on the damages calculation. See D. 18 (Appellant Br. at 29–36); D. 20 (Appellee
Br. at 17–30); D. 23 (Reply Br. at 2–9). NCR raises two arguments contesting the calculation
supporting the damages award. First, NCR argues that the Local 25 Funds used the wrong wage
rate, specifically by using the higher rates from Local 416 and Local 846—the rates that the out-
of-state employees were actually paid for the Michigan Project work—rather than the Local 25

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base rates reflected in the Local 25 Rate Schedules. D. 18 (Appellant Br. at 30–34). Second,
NCR contends that the audit should have accounted for the benefit contributions that NCR made
to the out-of-state funds, which, in NCR’s view, conflicts with the plain language of the Local 25
CBA and the International Agreement. Id. at 34–36.
Both arguments require interpretation of the governing agreements. Contracts
establishing an employee benefit plan must, among other things, “specify the basis on which
payments are made to and from the plan,” 29 U.S.C. § 1102(b)(4), and “[t]he plan administrator
is obliged to act ‘in accordance with the documents and instruments governing the plan insofar
as such documents and instruments are consistent with’” ERISA, Kennedy v. Plan Adm’r for
DuPont Sav. & Inv. Plan, 555 U.S. 285, 300 (2009) (quoting 29 U.S.C. § 1104(a)(1)(D)).
“Collective bargaining agreements that establish ERISA plans are interpreted by use of ordinary
contract principles to the extent those principles are not inconsistent with federal labor policy.”
Operating Eng’rs Local 324 Health Care Plan v. G&W Constr. Co., 783 F.3d 1045, 1051 (6th
Cir. 2015)). “When the terms of an ERISA plan are undefined, traditional principles of contract
interpretation require a plan administrator to ‘interpret the provisions [of the plan] according to
their plain meaning in an ordinary and popular sense.’” Adams v. Anheuser-Busch Cos., 758
F.3d 743, 748 (6th Cir. 2014) (quoting Williams v. Int’l Paper Co., 227 F.3d 706, 711 (6th Cir.
2000)).
If “a contract is in writing and its terms are clear and unambiguous, we ascertain the
contract’s meaning in accordance with the contract’s plainly expressed intent.” Orrand, 794
F.3d at 562. “Where a contractual provision ‘is subject to two reasonable interpretations,’
however, that provision is deemed ambiguous, and the court may look to extrinsic evidence” of
the contracting parties’ intent in order to construe the ambiguous provision. FDIC v. AmTrust
Fin. Corp. (In re AmTrust Fin. Corp.), 694 F.3d 741, 750 (6th Cir. 2012) (quoting Wulf v.
Quantum Chem. Corp., 26 F.3d 1368, 1376 (6th Cir. 1994)). The fact that parties propose
competing interpretations of language in a plan “does not dictate a finding that the provision is
ambiguous.” Shelby Cnty. Health Care Corp. v. Majestic Star Casino LLC Grp. Health Benefit
Plan, 581 F.3d 355, 370 (6th Cir. 2009). Rather, “the alternative interpretation . . . ‘must be a

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plausible one.’” Id. (quoting Zirnhelt v. Mich. Consol. Gas Co., 526 F.3d 282, 287 (6th Cir.
2008)). If a term of provision is ambiguous, courts “resolv[e] ambiguities in the insured’s favor”
because doing so aligns “with ERISA’s goals ‘to promote the interests of employees and their
beneficiaries in employee benefit plans,’ and ‘to protect contractually defined benefits.’”
Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 891 (6th Cir. 2020) (quoting Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989)).
1. Wage Rates
Although the benefits contributions at issue relate to employees affiliated with Local 416
and Local 846, the parties agree that the relevant governing CBA is the Local 25 CBA. D. 18
(Appellant Br. at 29–34) (relying on the Local 25 CBA); D. 20 (Appellee Br. at 19) (“[I]t is
undisputed that the Trustees of the [Local 25] Funds are enforcing the terms of the Local 25
CBA.”). This comports with the International Agreement, which states that the employer must
“pay the scale of wages and benefits . . . in force and effect in the Local Union in which the
Employer is performing or is to perform work.” R. 38-4 (Int’l Agreement § 6(A)) (Page ID
#903). The International Agreement also explains that employers must “make timely payments
into all fringe benefit funds in accordance with the applicable Local Union collective bargaining
agreement,” which is the “home Local Union of the geographic jurisdiction in which the work is
performed.” Id. § 6(C) (Page ID #904).
Under the Local 25 CBA, there are various funds to which employers are expected to
contribute, including a health fund, a pension fund, a training fund, and a vacation fund, among
others. See R. 38-3 (Local 25 CBA at art. V, §§ 1–6) (Page ID #868–69). Only two of these
funds’ contributions are computed based on wage rate—the vacation fund and the pension
fund—whereas the remaining fund contributions are calculated based on hours worked or hours
paid. See id. at art. V, §§ 4, 6; see also R. 38-18 (Local 25 Rate Schedules at 1) (Page ID
#1238). Thus, NCR’s challenge to the wage rate used to calculate unpaid contributions relates to
the vacation fund and the pension fund only. We address each in turn.

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The wage rate that should be used to calculate the unpaid contributions to the vacation
fund is the employee’s gross wage. The Local 25 CBA states that employers must pay into the
vacation fund in “an amount equal to the percentages as outlined in Article III of the Employee’s
gross earnings before taxes.” R. 38-3 (Local 25 CBA at art. V, § 6) (Page ID #869). Under
Article III, employers are instructed to request Rate Schedules from the union. Id. at art. III
(Page ID #867). The Local 25 Rate Schedules for the relevant period indicate that NCR was
required to pay 11.83% of an employee’s “gross earnings before taxes.” Id. at art. V, § 6 (Page
ID #869); R. 38-18 (Local 25 Rate Schedules at 1) (Page ID #1238). Because the Local 25 CBA
does not define “gross earnings before taxes,” this court must “interpret [this] provision
according to [its] plain meaning in an ordinary and popular sense.” Adams, 758 F.3d at 748
(quotations omitted). In plain terms, gross earnings refer to earnings that “consist[] of an overall
total exclusive of deductions.” Gross, MERRIAM-WEBSTER, https://perma.cc/2ZBF-BKMU (last
visited Aug. 5, 2024); see also Will Kenton, What is Gross Income? Definition, Formula,
Calculation, and Example, INVESTOPEDIA (Mar. 22, 2024), https://perma.cc/D2DJ-5QMT
(“Gross income for an individual . . . is an individual’s total earnings before taxes or other
deductions.”). The Local 25 CBA ties the calculation of the vacation fund contribution (based
on gross earnings) to the specific employee. R. 38-3 (Local 25 CBA at art. V, § 6) (Page ID
#869) (“[A]n amount equal to the percentage[] . . . of the Employee’s gross earnings before
taxes.” (emphasis added)). Accordingly, the vacation fund contribution must be made using the
specific employee’s gross earnings before any deductions. NCR’s proposed definition—using
the lower Local 25 wages from the Rate Schedules that were not the employee’s actual gross
wage rate—does not comport with the plain meaning of the Local 25 CBA. See In re AmTrust
Fin. Corp., 694 F.3d at 750 (“Where a contract’s meaning is clear on its face, that meaning
controls.”).
The wage rate that should be used to calculate unpaid contributions to the pension fund
presents a closer question. The Local 25 CBA instructs employers to pay into the pension fund
“an amount equal to the percentages as outlined in Article III.” R. 38-3 (Local 25 CBA at art. V,
§ 4) (Page ID #868). Under Article III, employers are directed to request Rate Schedules from
the union. Id. at art. III (Page ID #867). The Local 25 Rate Schedules provided for the relevant

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period indicate that the employer must contribute 60.69% of the employee’s “base wage” to the
pension fund. R. 38-18 (Local 25 Rate Schedules at 1) (Page ID #1238). The Local 25 CBA
does not define the term “base wage”; however, the Local 25 Rate Schedule uses a $28.82 wage
rate to compute example contributions. Id.
The parties both argue that the plain language of the Local 25 CBA supports their
position by adopting competing interpretations of the term “base wage.” The first—invoked by
NCR—is that the Local 25 Rate Schedule defines the base wage as a specific amount and the
Local 25 CBA integrates this specific amount through the Local 25 Rate Schedules. See R. 38-3
(Local 25 CBA at art. III) (Page ID #867); R. 38-18 (Local 25 Rate Schedules at 1) (Page ID
#1238) (including an example calculation using the $28.82 wages and noting “PENSION . . .
percentage of BASE WAGES.”). Thus, under NCR’s interpretation, it was required to
contribute to the pension fund 60.69% of the $28.82 wage rate from the example on the Rate
Schedules, rather than the higher rates used in the audit report (and actually paid to the
employees). Conversely, the Local 25 Funds contend that “base wage,” as it is used in the Local
25 CBA, takes on a commonsense definition, which is a starting wage that an employer “has
discretion to pay above.” D. 22 (Appellee Br. at 21–22). Under this interpretation, the Local 25
CBA cross-references the percentages in the Local 25 Rate Schedules but does not adopt the set
“base wage” amount from the examples. See R. 38-3 (Local 25 CBA at art. V, § 4) (Page ID
#868) (“For each Employee covered by this Agreement, an Employer shall contribute to the
[pension fund] an amount equal to the percentages as outlined in Article III.” (emphasis added)).
Therefore, in the Local 25 Funds’ view, because NCR paid a higher wage to the out-of-state
employees, the higher wage should be multiplied by the percentage from the Local 25 Rate
Schedule.
Although these competing interpretations both appear plausible based on the Local 25
CBA, the Local 25 Funds’ interpretation more faithfully aligns with the plain language of the
Local 25 CBA. Specifically, Article V, § 4 does not indicate that the calculation relies on the
wages used in the Local 25 Rate Schedules; instead, the Local 25 CBA states only that the
contributions should be calculated using “the percentages” in the Local 25 Rate Schedules. R.

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38-3 (Local 25 CBA at art. V, § 4) (Page ID #868). The Local 25 Rate Schedules instruct that, to
calculate vacation contributions, the percentage should be multiplied by the base wage. See R.
38-18 (Local 25 Rate Schedules at 1) (Page ID #1238) (including an example calculation using
the $28.82 base wage and noting “PENSION . . . percentage of BASE WAGES.”). The Local
25 CBA does not define base wages; however, the ordinary definition of that term is “a rate or
amount of pay for a standard work period, job, or position exclusive of additional payments or
allowances.” Base Pay, MERRIAM-WEBSTER, https://perma.cc/G9JN-PSCC (last visited Aug. 5,
2024); see also Julia Kagan, Base Pay: Definition as Income, and Comparison to Annual Pay,
INVESTOPEDIA (Dec. 8, 2021), https://perma.cc/UZE2-GUL3 (“Base pay is the initial salary paid
to an employee, not including any benefits, bonuses, or raises. . . . Base pay does not include all
forms of compensation; for instance, shift differential pay, on-call pay, special assignments, and
incentive-based pay are typically excluded from base pay. Generally, an employee’s base pay is
the minimum amount they should expect to receive during a specified pay period . . . .”).
The out-of-state employees were given “a rate . . . of pay for [the] . . . job” when they
were hired to work on the Michigan Project. Id.; see also R. 38-2 (Grantham Decl. ¶¶ 11–14, 16)
(Page ID #849–50). The rate of pay was not the specific amount used in the Local 25 Rate
Schedules; instead, the employees were paid based on their home-union wages. See R. 38-2
(Grantham Decl. ¶ 16) (Page ID #850). The wages paid during the Michigan Project differed
based on the employees’ position (journeyman, foreman, etc), shift, see, e.g., R. 38-18 (Local 25
Rate Schedules at 1) (Page ID #1238), and years of experience, see R. 38-7 (Reeves Dep. at
46:7–9) (Page ID #1001). Thus, there is a different “rate or amount of pay” for the work period,
Base Pay, MERRIAM-WEBSTER, https://perma.cc/G9JN-PSCC (last visited Aug. 5, 2024), and
each employee has a different “base pay [that] is the minimum amount they . . . expect[ed] to
receive during” the Michigan Project, before any bonuses or other forms of additional
compensation, see Julia Kagan, Base Pay: Definition as Income, and Comparison to Annual Pay,
INVESTOPEDIA (Dec. 8, 2021), https://perma.cc/UZE2-GUL3. The base wages in this context
are, therefore, the base rate that each employee was paid for this project, not the minimum wage
payable based on the Local 25 Rate Schedules. Accordingly, pension fund contributions should
be calculated using the base rate that the employees were actually paid for the Michigan Project.

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Even if this were not so, and the term “base wage” could be considered ambiguous based
on the competing definitions, any ambiguity must be construed in favor of the insured in order
“‘to promote the interests of employees and their beneficiaries in employee benefit plans,’ and
‘to protect contractually defined benefits.’” See Wallace, 954 F.3d at 891 (quoting Firestone,
489 U.S. at 113). Here, construing the term “base wage” in favor of the employees would lead to
the same conclusion: the employees are entitled to have NCR contribute based on the higher
base wage rate they were actually paid for the Michigan Project because this would maximize
the benefits contributions.
Finally, it is not apparent from the record whether the audit used the proper wage rates.
Although the Local 25 Funds represented during oral argument that the proper wage rates were
used for the audit, see Oral Argument at 23:30–24:26, the Local 25 Funds did not identify
evidence to support its position and appeared to rely on a misunderstanding of gross wages, and
it is not otherwise clear that the record supports the Local 25 Funds’ position, see id. (Local 25
Funds’ lawyer stating that the pension contribution is based on “the wage rate paid per hour” and
the vacation contribution is “based . . . on the gross earnings after taxes” and explaining that the
auditor used these rates to complete the audit (emphasis added)). The record shows that the audit
used the wages actually paid to the employees, but it is not clear whether the wages used in the
calculation were gross wages for the vacation fund and base wages for the pension fund. See R.
36-5 (Reeves Decl. ¶¶ 6–11) (Page ID #429–31); R. 36-9 (Audit at 1–4) (Page ID #546–49)
(indicating that the audit used the employees’ “wages” but not specifying whether those wages
are gross, base, or net). Although it is possible that certain employees’ gross and base wages are
identical, there is insufficient information in the record before this court for us to conclude that
the audit used the proper wage rates. Because the Local 25 Funds, as plaintiffs, moved for
summary judgment, they bear the evidentiary burden to show that the audit used the rate required
under the Local 25 CBA. See Cockrel, 270 F.3d at 1056. This issue, therefore, is a genuine
issue of material fact that remains unresolved.
In sum, the Local 25 CBA required the Fund to calculate benefits using distinct employee
wage rates—gross for the vacation fund and base for the pension fund—and, thus, the Local 25

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Funds are correct that the audit should use the higher wage rates rather than the example wage
rates used on the Local 25 Rate Schedule. Nonetheless, because it is not clear from the record
whether the audit correctly used gross and base wage rates for the requisite funds, the Local 25
Funds have not met their burden to show that they are entitled to the unpaid contributions as
currently calculated by the audit.
2. Payment to Out-of-State Funds
Next, NCR argues that the auditor incorrectly included contributions that it already made
to the out-of-state funds, in violation of the International Agreement’s prohibition on duplicate
contributions. D. 18 (Appellant Br. at 34–36). In response, the Local 25 Funds do not dispute
NCR’s interpretation of the International Agreement; instead, the Local 25 Funds argue that the
contributions it seeks are not duplicates because “NCR has not paid the documented fringe
benefit contributions to the [Local 25] Funds in Michigan in the first place” as required by the
Local 25 CBA. D. 20 (Appellee Br. at 28–29). The Local 25 Funds also fault NCR for “fail[ing]
to identify the amount of credit or setoff it is seeking.” Id. at 27–28.
The relevant governing contract is unambiguous and bars the Local 25 Funds from
collecting the requested duplicate contributions. The International Agreement states, in relevant
part, that “[u]nder no circumstances shall there be a request for a payment of double fringe
benefit amounts (benefits paid to more than one Local Union’s funds) as a result of work
performed under this agreement.” R. 38-4 (Int’l Agreement § 6(D)) (Page ID #904). The
agreement is unequivocal in that there is “no circumstance[]” under which double payment can
be requested. Id.
Here, NCR made benefits contributions to funds associated with Local 416 and Local
846, and the Local 25 Funds were aware of these contributions. See R. 38-2 (Grantham Decl.
¶ 10) (stating that “NCR paid fringe benefit contributions, with the exception of vacation
contributions and dobie dues, to . . . Local 846 and Local 416”); R. 38-7 (Reeves Dep. at 31:18–
33:11) (Page ID #986–88) (explaining that it appeared to Reeves that NCR was sending benefits
contributions to the out-of-state funds). The Local 25 Funds’ auditor did not attempt to account

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for any payments that NCR made to the out-of-state unions. See R. 38-15 (9/14/2021 Email at 1)
(Page ID #1227); R. 38-16 (9/15/2021 Email at 1) (Page ID #1230).
Although “standing alone, an award of benefits causing an employer to double pay
‘would not be sufficient to relieve the employer of its contractual obligation to make
contributions,’” Orrand v. Hunt Constr. Grp., Inc., 852 F.3d 592, 595 (6th Cir. 2017) (quoting
Trs. of B.A.C. Loc. 32 Ins. Fund v. Ohio Ceiling & Partition Co., 48 F. App’x 188, 196–97 (6th
Cir. 2002)), here, NCR is not simply arguing that ERISA prevents double payment. Instead,
NCR has identified a controlling contractual provision that prohibits double payments explicitly.
The Local 25 Funds do not contest that this provision exists; instead, they argue that NCR must
nonetheless contribute to the Local 25 Funds because, under the Local 25 CBA, NCR should
have paid the Local 25 Funds in the first instance. In other words, the Local 25 Funds have
identified a conflict in the governing agreements. “In situations where” there are “conflicting
[governing agreements] that purport to impose a duty to ‘double pay’ for the same job, the
collecting trustee must show that the [governing agreements]” intended to allow for double
payment. Trs. for Mich. BAC Health Care Fund v. OCP Contractors, Inc., 136 F. App’x 849,
851 (6th Cir. 2005) (per curiam). The Local 25 Funds may be correct that they were entitled to
the contributions in the first instance; however, the International Agreement unequivocally states
that there are “no circumstances” under which the Local 25 Funds can collect duplicate
contributions. R. 38-4 (Int’l Agreement § 6(D)) (Page ID #904). NCR has already contributed
to the out-of-state funds on behalf of employees that performed work on the Michigan project,
and therefore, the Local 25 Funds’ request for contributions on behalf of those same employees
is duplicative. Without any suggestion that the governing contracts allow for double payment—
and in the face of clear contractual language that prohibits it—the Local 25 Funds cannot request
this double payment. See Trs. for Mich. BAC Health Care Fund, 136 F. App’x at 851.
Accordingly, the Local 25 Funds’ audit includes contributions to which the Local 25 Funds are
not entitled under the International Agreement.
In light of this, the Local 25 Funds’ argument that NCR failed to provide evidence of the
amount it paid to out-of-state unions inappropriately shifts the burden of proof at summary

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judgment.7 The Local 25 Funds bear the burden of proving that they are entitled to the amount
of damages that they seek and, at this stage, to preclude summary judgment, NCR need only
identify a question of fact concerning the calculation of damages such that a reasonable juror
may not award the Local 25 Funds the full requested amount. For the reasons explained above,
the Local 25 Funds’ unpaid-contribution estimate is legally inaccurate and there is insufficient
evidence in the record to support an accurate estimate that does not include duplicative
contributions. Therefore, the Local 25 Funds have not shown that they are entitled as a matter of
law to the requested sum of unpaid contributions, and the Local 25 Funds are not entitled to
summary judgment as to damages.8
C. Equitable Relief
Finally, NCR argues that the district court abused its discretion because it “imposed a de
facto prior-case requirement,” “failed to examine the facts or balance the equities,” and
incorrectly stated “that NCR could recover the amount of its judgment from the out-of-state
funds.” D. 23 (Reply Br. at 15–16); see also D. 18 (Appellant Br. at 36–44). Employers are
restricted in the defenses that they may raise when they are sued to collect unpaid contributions
to ERISA funds. Nonetheless, “[c]ourts generally permit a few defenses, including illegality of
the contributions, the contract requiring the contributions was void at its inception, or the union
was decertified.” Operating Eng’rs Loc. 324 Health Care Plan, 783 F.3d at 1052. These
permissible defenses “render irrelevant the oral statements or conduct of the Union in a
collection action.” Id. at 1053.
7Even if NCR were required to produce evidence of the specific amounts contributed to Local 416 and
Local 846, such evidence is in the record. See R. 36-16 (Local 416 Contr. at 1) (Page ID #634) (indicating that NCR
owed $104,002.56 in contributions to Local 416 for February 2021); R. 36-18 (Local 416 Discrepancy Rep. at 1)
(Page ID #660) (depicting $154,106.16 in contributions owed by NCR to Local 416); R. 38-2 (Grantham Decl. ¶ 10)
(stating that “NCR paid fringe benefit contributions, with the exception of vacation contribution and dobie dues, to
. . . Local 846 and Local 416”). Although these records are incomplete, they are sufficient factually to substantiate
NCR’s claim that the audit is inaccurate.
8Because the Local 25 Funds have not met their burden as to unpaid contributions, they necessarily have
not met their burden to prove interest and liquidated damages, which are calculated using the amount of unpaid
contributions. See 29 U.S.C. § 1132(g)(2). No party contests the amount of attorney fees or costs, and, therefore,
we do not address those awards. The district court on remand may reconsider those amounts as appropriate.

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ERISA also allows for unjust-enrichment claims. Generally, “the assets of a plan shall
never inure to the benefit of any employer and shall be held for the exclusive purposes of
providing benefits to participants in the plan and their beneficiaries and defraying reasonable
expenses of administering the plan.” Whitworth Bros. Storage Co. v. Cent. States, Se. & Sw.
Areas Pension Fund, 794 F.2d 221, 225 (6th Cir. 1986) (emphasis omitted) (quoting 29 U.S.C.
§ 1103(c)(1)). If, however, an employers’ contribution was made “by a mistake of fact or law,”
section 1103(c)(1) “shall not prohibit the return of such contribution” to the employer. Id. at 225
(quoting 29 U.S.C. § 1103(c)(2)(A)(ii)). This provision has been interpreted to allow employers
to bring unjust-enrichment claims. See id. at 231, 235–36 & nn.23–24 (explaining that “[a]n
action for unjust enrichment, equitable in nature, and developed in light of the policies of ERISA
is appropriate” in part because ERISA “evinces congressional intent not to completely preclude
employer recovery of mistakenly paid contributions”). Any unjust-enrichment claim is “limited
by the terms of ERISA . . . and by the terms of the agreement between the parties” and, at times,
may mean that mistaken payments are not refunded because “Congress, in weighing the interests
implicated in the context of employee benefit plans, has favored the financial soundness of the
plan and held employers to high standards of accounting.” Id. at 236 n.24.
Here, the district court did not abuse its discretion. First, the district court did not—as
NCR contends—apply “a de facto prior-case requirement.” D. 23 (Reply Br. at 15). Instead, the
district court addressed the arguments that NCR made in its briefing. R. 43 (09/17/2023 D. Ct.
Op. at 11–12) (Page ID #1354–55). NCR had relied principally on out-of-circuit cases—because
it was requesting equitable relief in a circumstance that this circuit has not yet addressed—and
the district court determined that the primary case that NCR provided was not analogous. See R.
38 (Opp’n at 18–19) (Page ID #842–44). Specifically, the district court explained that Coar v.
Kazimir, 990 F.2d 1413 (3d Cir. 1993), was inapposite. See R. 43 (09/17/2023 D. Ct. Op. at 11–
12) (Page ID #1354–55). In Coar, the Third Circuit found that the plaintiff-employee was
entitled to his unpaid benefits that the Fund had withheld in order to pay a civil judgment related
to “kickbacks” that were made using fund assets because “permitting the set-off in this case best
implements Congress’s purpose to guarantee pension beneficiaries the broadest protection
possible against fiduciaries who breach their fiduciary duties to a pension fund and thereby

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cause it losses.” 990 F.2d at 1414–15, 1424 (emphasis added). In reviewing Coar, the district
court did not state that a prior case was required; instead, it simply found that the cases NCR
invoked did not support its argument. This was not an abuse of discretion because Coar did not
involve unpaid contributions by an employer into a fund, but instead addressed a beneficiaries’
entitlement to benefits when a fund breached its fiduciary duties.
NCR’s second and third arguments—that the district court failed to weigh the equities
and incorrectly determined that NCR had a viable unjust-enrichment claim against Local 416 and
Local 846—are interrelated. The district court explained that NCR’s arguments on these points
“lack[ed] merit” because “the factual scenarios in the cases [NCR] relie[d] upon [were] not
analogous to the facts of this case” and NCR could get its requested equitable relief by
“pursu[ing] a claim of unjust enrichment, or similar, against Local 846 or Local 416 funds.”
R. 43 (09/17/2023 D. Ct. Op. at 11–12) (Page ID #1354–55). The district court correctly
concluded that NCR’s setoff request was directed at the wrong fund. NCR’s “mistaken
payments” were not to the Local 25 Funds that are party to this case; the contributions were
mistakenly made to Local 846 and Local 416. NCR’s request for equitable relief is more
appropriately directed to the out-of-state unions’ funds.9 At bottom, NCR disagrees with the
manner in which the district court weighed the equities in this case. Such a contention does not
amount to an abuse of discretion.
9NCR’s view that it no longer has a viable unjust-enrichment claim is based on its interpretation of the out-
of-state union CBAs, which provide a limited period under which NCR was required to request a return of mistaken
contributions made to the out-of-state funds. See D. 18 (Appellant Br. at 36–44). NCR has not provided a reason as
to why it could not bring a lawsuit despite failing to use the contractual remedies, particularly when NCR arguably
could not comply with the contractual time limits due to the Local 25 Funds’ actions—as opposed to NCR’s own
negligence.
Even if NCR were no longer able to bring an unjust-enrichment suit against the out-of-state funds, NCR
has not provided a reason why the Local 25 Funds should be responsible for bearing the harm of the mistaken
payments. See Whitworth, 794 F.2d at 236 & n.24 (“Congress, in weighing the interests implicated in the context of
employee benefit plans, has favored the financial soundness of the plan and held employers to high standards of
accounting.”).

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III. CONCLUSION
For the reasons set forth above, we AFFIRM in part and REVERSE in part and
REMAND the case for further proceedings.

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