Opinion
22 cv 3936
07-16-2024
CHICAGO & VICINITY LABORERS' DISTRICT COUNCIL PENSION FUND, et al. Plaintiffs, v. HUGH HENRY CONSTRUCTION INC. d/b/a GALLAGHER CONCRETE, INC., Illinois corporations, TRACEY BIESTERFELDT, individually, and MICHAEL GALLAGHER, individually Defendants.
MOTION FOR ENTRY OF JUDGMENT IN SUM CERTAIN
Gottschall, Judge
Now come Plaintiffs Chicago & Vicinity Laborers' District Council Pension Fund, Chicago & Vicinity Laborers' District Council Welfare Fund, Chicago & Vicinity Laborers; District Council Retiree Health and Welfare Fund, and Catherine Wenskus (collectively referred to hereinafter as the “Funds”), by and through their attorney, Amy Carollo, and hereby move this Court for the entry of judgment in sum certain against Defendants Hugh Henry Construction Inc. d/b/a Gallagher Concrete, Inc. (hereinafter “Gallagher Concrete”), Tracey Biesterfeldt, individually, and Michael Gallagher, individually. In support of this Motion, Plaintiffs state as follows:
1. The Funds filed their Complaint on July 28, 2022 (and later filed their First Amended Complaint on July 6, 2023), seeking to compel Gallagher Concrete, Tracey Biesterfeldt, and Michael Gallagher to submit and pay its benefits reports/contributions for the period of December 2021 forward and dues reports/dues for the period of January 2022 forward, submit its books and records to an audit upon demand and pay all amounts found due and owing on that audit, and an order for the Defendants to obtain a surety bond.
2. The Court entered an order of default against Ms. Biesterfeldt and Mr. Gallagher on December 16, 2022 (see docket number 23) and against Gallagher Concrete on August 8, 2023 (see docket number 88).
3. Gallagher Concrete submitted its books and records to an audit. The audit was provided to the Defendants on November 8, 2023.
4. Defendants provided challenges; the audit was revised and provided to the Defendants on June 25, 2024.
5. Pursuant to Section 502(g)(2) of the Employees Retirement Income Security Act (“ERISA”), as amended, 29 U.S.C. § 1132(g)(2), Section 301 of the Labor Management Relations Act (“LMRA”), as amended, 29 U.S.C. § 185, Plaintiffs are entitled to judgment in their favor and jointly and severally against Defendants Hugh Henry Construction Inc. d/b/a Gallagher Concrete, Inc., Tracey Biesterfeldt, individually, and Michael Gallagher, individually in the amount of $284,290.99 as follows:
(a) $256,857.94 in unpaid contributions, dues, interest, liquidated damages, accumulated liquidated damages, and audit costs on the audit for the period of June 1, 2020 through October 31, 2022. See Declaration of Rocco Marcello attached hereto as Exhibit A, ¶ 9.
(b) $27,433.05 in attorney's fees and costs expended to date in this matter. See Declaration of Amy Carollo, attached hereto as Exhibit B.
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and jointly and severally against Defendants Hugh Henry Construction Inc. d/b/a Gallagher Concrete, Inc., Tracey Biesterfeldt, individually, and Michael Gallagher, individually, in the amount of $284,290.99 representing $256,857.94 in unpaid contributions, dues, interest, liquidated damages, accumulated liquidated damages and audit costs due on the audit of the Company's books and records for the period of July 10, 2020 through December 31, 2022 and $27,433.05 in attorney's fees and costs expended to date in this matter. Plaintiffs further respectfully request that this Court order the Defendants to pay all post-judgment interest on the judgment amount from the date of judgment until judgment is paid in full.
DECLARATION OF ROCCO MARCELLO
I, ROCCO MARCELLO, declare and state as follows:
1. I am and have been at all times relevant the Field Representative in the Finance Department of the Chicago & Vicinity Laborers' District Council Pension Fund, the Chicago & Vicinity Laborers' District Council Welfare Fund and the Chicago & Vicinity Laborers' District Council Retiree Welfare Fund (hereinafter collectively referred to as the “Funds”), Plaintiffs in the above referenced action. My responsibilities include monitoring compliance of signatory contractors financial obligations set forth in the parties Construction and General Laborers' District Council of Chicago and Vicinity ("Union") collective bargaining agreement. ("Agreement"). This Declaration is submitted in support of the Funds' Motion for Entry of Judgment in Sum Certain against Hugh Henry Construction Inc. d/b/a Gallagher Concrete, Inc. (hereinafter “Gallagher Concrete” or the “Company”), Tracey Biesterfeldt, individually, and Michael Gallagher, individually. I have personal knowledge regarding the statements contained herein.
2. I am charged with monitoring the Company's compliance with the Agreement and the Funds' respective Agreements and Declarations of Trust. These duties include collecting monthly fringe benefit and union dues reports and payments, reviewing audit reports, calculating liquidated damages assessed against late paid fringe benefit reports and working the with Company to assist it in becoming current with its obligations.
3. The Union and Company are parties to successive collective bargaining agreements, the most recent of which became effective on June 1, 2021 (“Agreement”). (Gallagher assigned its collective bargaining rights to the Mid-America Regional Bargaining Association on October 1,2012). (A true and accurate copy of the assignment is attached hereto as Exhibit A-l.)
4. I am familiar with the Construction and General Laborers' District Council of Chicago and Vicinity's Independent Construction Industry Collective Bargaining Agreement, the various area-wide negotiated collective bargaining agreements, the Funds' respective Agreements and Declarations of Trust and the collection policies adopted by the Funds' Trustees.
5. The Agreement, the Collective Bargaining Agreement, and the Funds' Declarations of Trust and Funds' Restated Collection Policy to which the Company is bound require that the Company submit benefit reports and contribution payments by the tenth day of the following month. Payments which are not received within thirty (30) days of this date are assessed liquidated damages in the amount of 10% or 20% of the principal amount of delinquent contributions, and interest at a rate of 12% compounded from the date of delinquency forward. A copy of the Collective Bargaining Agreement is attached as Exhibit A-2; a copy of the Amended Agreement and Declaration of Trust creating the Laborers' Pension Fund is attached as Exhibit A-3; a copy of the Amended Health and Welfare Department of the Construction and General Laborers' District Council is attached as Exhibit A-4; a copy of the Declaration of Trust creating the Laborers' District Counsel Retiree Health and Welfare Fund is attached as Exhibit A-5; a copy of the Agreement and Declaration of Trust Establishing the Construction and General Laborers' District Council of Chicago and Vicinity Training Trust Fund is attached hereto as Exhibit A-6; a copy of the Funds' Restated Collection Policy is attached as A-7.
6. In addition to fringe benefit reports, the CBA obligates the Company to submit and pay Dues Reports. The Company is required to deduct from the wages of employees covered by said contract working dues in the amount of three and three-quarter percent (3.75%) of gross wages and remit withheld dues on a monthly basis to the Union office the sums so deducted. Pursuant to agreement, the Funds have been duly authorized to act as collection agents on behalf of the District Council for union dues owed to the District Council.
7. The CBA also requires the Company to pay contributions to the Industry Funds. These contributions are paid as part of the Dues Reports. The CBA requires the Company to pay one cent ($.01) for each hour worked by employees covered by the CBA to the CISCO Uniform Drug/Alcohol Abuse Program (“CISCO”), seven cents ($.07) for each hour worked by employees covered by the CBA to the Industry Advancement Fund (“IAF”), seven cents ($.07) for each hour to the Chicago-Area Laborers-Employers Cooperation and Educational Trust (“LECET”) and seventeen cents ($.17) per hour to the Laborers' District Council Laborer Management Cooperation Committee (“LDCLMCC”).
8. Dues Reports and contributions are due by the 10th day following the month in which the work was performed. Dues Reports and contributions which are not submitted in a timely fashion are assessed liquidated damages at ten percent (10%) of the union dues report amount. In addition, the Company is responsible under the terms of the Agreement and the Funds' respective Agreements and Declarations of Trust for payment of the costs of any audit that reveals delinquencies due and owing to the Funds.
9. The Company submitted its books and records to an audit for the period of June 1, 2020 through October 31,2022. The revised audit report shows that the Company owes:
Welfare Fund $ 53,484.36
Welfare Liquidated Damages $ 10,696.87
Retiree Welfare Fund $ 24,645.36
Retiree Welfare Fund Liquidated Damages $ 4,929.07
Pension Fund $ 69,490.66
Pension Fund Liquidated Damages $ 13,898.13
Training Fund $ 4,224.92
Training Fund Liquidated Damages $ 844.98
Dues Fund $ 5,460.87
Dues Fund Liquidated Damages $ 546.09
LDCLMCC $ 519.38
LDCLMCC Liquidated Damages $ 51.94
LECET $ 213.87
LECET Liquidated Damages $ 21.39
IAF $ 328.62
IAF Liquidated Damages $ 65.72
CISCO $ 46.96
CISCO Liquidated Damages $ 9.39
Interest to All Funds $ 35,016.38
Accumulated Liquidated Damages $ 49,279.17
Audit Costs $ 3,624.00
Less Partial Payment Toward $ (20,540.19)
December 2021
TOTAL $ 256,857.94
A copy of the revised audit is attached as Exhibit A-8. A copy of my spreadsheet of amounts owed is attached as Exhibit A-9.
I declare under penalty of perjury that the foregoing is true and correct.
October 1, 2012
(Exhibit A-1 Omitted)
(Exhibit A-4 Omitted)