Opinion
NO. 06 C 2584.
August 7, 2007
LABORERS' PENSION FUND et al., IDALA H. STROUSE, MARC M. PEKAY, P.C., Chicago, IL, One of the Attorneys for Plaintiff.
MOTION FOR ENTRY OF JUDGMENT
NOW COMES the Plaintiff, LABORERS' PENSION FUND and LABORERS' WELFARE FUND OF THE HEALTH and WELFARE DEPARTMENT OF THE CONSTRUCTION and GENERAL LABORERS' DISTRICT COUNCIL of CHICAGO and VICINITY (collectively "The Funds") and JAMES S. JORGENSEN (hereinafter "Jorgensen"), Administrator of the Funds, by and through their attorney, MARC M. PEKAY, P.C. and hereby move for Entry of Judgment against the Defendant, G.K. Harris, Ltd., (hereinafter called the "Defendant"). In support of this Motion, Plaintiffs state as follows:
1. Plaintiffs filed their Complaint on May 9, 2006 seeking Contributions from January 2006 forward, Dues from December 2005 forward, to compel Defendants to submit their books and records to an audit from December 13, 2005 forward and for a Wage and Fringe Benefit Bond. The Defendant was served with the Complaint and Summons on May 15, 2006.
2. The Defendant did not answer or respond such that this Court found the Defendant in Default on June 13, 2006.
3. After an Order for Body Attachment was issued, the Company did submit its books and records for an audit which was completed and forwarded to the Defendant to submit any challenges or to contest the amounts.
4. An audit was subsequently performed and the Company's attorney entered his appearance.
5. To date, Plaintiffs have not received any response to their Complaint.
6. Attached as Exhibit A is the Affidavit of Jim Fosco. This affidavit states that the Defendant owes Thirty Thousand Eight Hundred and Seven Dollars and forty two cents ($30,807.42) pursuant to an audit for the time period of December 13, 2005 through November 30, 2006 which includes contributions, dues, interest, audit costs and liquidated damages. Defendant also owes Ten Thousand Dollars ($10,000.00) for a Wage and Fringe Benefits bond (See Affidavit of Jim Fosco filed contemporaneously herewith and attached here to as Exhibit A.) In addition, the Defendant owes attorney fees and costs incurred by the Plaintiffs to collect this money in the amount of Five Thousand Six Hundred Twenty Seven Dollars and fifty cents ($5,627.50). (See Exhibit B, Affidavit of Marc Pekay as attached).
WHEREFORE Plaintiffs respectfully move:
A. That a judgment be entered against G.K. Harris, Ltd. in the amount of $46,434.92 which includes contributions, dues, late fees, audit costs and interest for contributions not paid from December 13, 2005 through November 30, 2006 pursuant to the audit in the amount of $30,807.42, a $10,000.00 wage and fringe benefit bond plus the attorney fees and costs in the amount of $5,627.50;
B. That this Court grant Plaintiffs such additional costs and fees incurred in the collection of this Judgment.
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LABORERS' PENSION FUND and ) LABORERS' WELFARE FUND OF THE ) HEALTH and WELFARE DEPARTMENT ) NO. 06 C 2584 of the CONSTRUCTION and GENERAL ) LABORERS' DISTRICT COUNCIL of ) Judge Amy St. Eve CHICAGO and VICINITY, and JAMES S. ) JORGENSEN, ADMINISTRATOR OF THE ) Magistrate Judge Levin FUNDS, ) Plaintiffs, ) v. ) ) G.K. HARRIS, LTD., ) ) Defendant. )AFFIDAVIT
JIM FOSCO, being first duly sworn on oath, deposes and states as follows:1. I am a Field Representative employed by the Laborers' Pension Fund and the Laborers' Welfare Fund of the Construction and General Laborers' District Council of Chicago and Vicinity (hereinafter collectively referred to as the "Funds"), Plaintiffs In the above referenced action. My responsibilities include oversight of the collection of amounts owed by Defendant, G.K. Harris, Ltd. (hereinafter "G.K. Harris" or the "Company"). This Affidavit is submitted in support of the Laborers' Funds' Motion for Entry of a Judgment. I have personal knowledge regarding the statements contained herein.
2. Attached as Exhibit A-1 is the Collective Bargaining Agreement between and the Construction and General Laborers' District Council of Chicago and Vicinity ("District Council") and Laborers' Local Union No. 1 (hereinafter "the Union") which require the Defendant to make contributions to the Funds.
3. Pursuant to the 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.
4. The Agreement and the Funds' respective Agreements and Declarations of Trust 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 days of this date are assessed liquidated damages in the amount of ten percent of the principal amount of delinquent contributions, and interest at a rate of prime plus two percent as charged by the First National Bank of Chicago from the date of delinquency forward. A copy of the relevant portions of the amended Agreement and Declaration of Trust creating the Laborers' Pension Fund are attached as Exhibit A-2; and a copy of the relevant portions of the Amended Health and Welfare Department of the Construction and General Laborers' District Council are attached as Exhibit A-3.
5. Attached as Exhibit A-4 shows that the Company owes $30,807.42 pursuant to an audit for hours worked from December 13, 2005 to November 30, 2006. This amount includes unpaid contributions, unpaid dues, liquidated damages, interest for these shortages and audit costs.
6. In addition to the amounts above, the Funds have spent $5,627.50 in legal fees and costs. The legal fees for the filing of this lawsuit are based upon a billing rate of $175.00 per hour. (See Exhibit B)
7. Defendant must also obtain a $10,000.00 surety bond.
8. The total amount due the Funds as of this date is Forty Six Thousand Four Hundred Thirty Four Dollars and ninety two cents ($46.434.92), pursuant to the Collective Bargaining Agreement and Trust Agreement, the Defendant would also have to pay all additional legal fees and costs incurred to collect this money and any additional money in contributions that have not been submitted.
FURTHER AFFIANT SAYETH NAUGHT
Dated this 7th day of AUGUST 2007
EXHIBIT A-1
ExhibitExhibit A-2 RESTATED AGREEMENT AND DECLARATION OF TRUST CREATING LABORERS' PENSION FUND
With Amendments Through
May 31, 2002
LABORERS' PENSION AND WELFARE FUNDS POLICY FOR RETENTION AND PRODUCTION OF EMPLOYER RECORDS As Adopted by the Boards of Trustees Effective as of March 1, 2002WHEREAS, Section 209 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. Section 1059, requires employers obligated to contribute to employee benefit funds to maintain records with respect to its employees which are sufficient to determine benefits due to such employees of which may become due to them; and
WHEREAS, the Trustees of the Laborers' Pension Fund and the Trustees of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (collectively, the "Benefit Funds") have the authority under their respective Trust Agreements to establish rules, regulations and policies regarding records which must be maintained by employers in order to administer the Benefit Funds; and
WHEREAS, the Trustees of the Benefit Funds have found that most contributing employers maintain proper records and make all required contributions to the Benefit Funds, nevertheless, there are employers who are bound by the Trust Agreements of the Benefit Funds who fail to maintain records which are adequate for the Funds to determine whether proper contributions have been made on behalf of eligible employees and that some of such employers do so deliberately in order to avoid their obligations to make such payments; and
WHEREAS, the practices of employers who fail to maintain records sufficient to enable the Benefit Funds to conduct thorough payroll audits cause their employees to lose valuable pension and welfare benefits and cause the Benefit Funds to lose contractually required contributions and investment earnings on those contributions; and
WHEREAS, the practices of employers who fail to maintain adequate records cause the Benefit Funds to incur substantial additional administrative and legal expenses in order to determine proper amounts owed to the Funds by such employers; and
WHEREAS, enforcement of a policy specifying the records required to be maintained and produced increases the ability of the Funds to prove the contributions owed by delinquent employers and thereby to provide proper credit to the employees and their beneficiaries;
NOW THEREFORE, the Trustees resolve that the following policies are adopted by the Benefit Funds effective as of March 1, 2002:
1. Except as otherwise provided herein all contributing employers to the Benefit Funds shall maintain and make available for inspection and copying by an auditor of the Benefit Funds the records listed on Appendix A, attached hereto.
2. Any employer obligated to contribute to the Benefit Funds who fails to maintain and make available for inspection and copying to an auditor of the Benefit Funds the requisite records listed on Appendix A shall bear the burden of proof with respect to the exclusion of any employee from coverage by the collective bargaining agreement with the Union. In those cases where an employer asserts that an employee is excluded because he/she is a member of another bargaining unit, the employer must submit tangible evidence of that fact, e.g., a union membership card, contribution records maintained for the benefit funds of the other bargaining unit, commercial drivers' license if it is asserted that an employee is a truck driver rather than a laborer and workers' compensation policies, forms and applications listing an employee's job classification or other business records, The affidavit of an employer's representative or officer unsupported by documentary evidence shall not be sufficient to meet the employer's burden of proof. Affidavits solicited and obtained ex parte by an employer's representative from employees, for which there is no corroborative evidence in the form of records maintained in the ordinary course of business, shall not be sufficient to meet the employer's burden of proof.
3. When an employer has failed to maintain or make available the requisite records, there shall be a rebuttable presumption that any employee listed as a possible laborer by an auditor, Field Representative or attorney representing the Benefit Funds was a laborer. There shall also be rebuttable presumptions concerning the hourly rate and number of hours worked as follows: (a) that the employee was paid only $10.00 per hour if no record of wage rates was made by the employer, and/or (b) that the employee worked 50 hours per week if no record of the number of hours was maintained; whichever of these presumptions results in the higher amount of contributions shall be applied. When evidence exists that a different hourly rate was paid to employees of an employer that failed to maintain the required records, at the discretion of the Director of the Field Department, a different hourly rate may be presumed for purposes of determining the amount of contributions owed by the employer. If that evidence shows that the employer paid a rate lower that $10.00 per hour to any employees doing bargaining unit work, then that lower rate shall be presumed to be the actual rate paid to all employees for whom adequate records were not kept. Similarly, where evidence exists of a different number of hours worked, the Director may apply a different number of hours for determining the contributions owed, and this number of hours worked shall be presumed correct. All wages computed as provided in this paragraph shall be presumed to be paid as straight time wages regardless of the number of hours worked unless the employer has provided documentation, in the form required by the terms of this policy, showing that it followed the requirements of the Fair Labor Standards Act and/or the applicable collective bargaining agreement as to the payment of overtime.
4. An employer that fails to maintain the requisite records and fails to cooperate with the Trustees in establishing the paid wage rates, actual hours of work and contributions owed to the Benefit Funds shall be liable to the Benefit Funds and any related organizations for the contribution amounts determined as provided herein and also for 20% liquidated damages compound interest at the rate of prime plus ***ILLEGIBLE TXT*** points as determined by the Administrat***ILLEGIBLE TXT*** auditor's and attorney's fees and any other expenses of collection including investigative costs.
(b) To enforce the provisions of the Pension Plan and the rules and regulations adopted by the Trustees in a uniform manner with respect to individuals similarly situated.
(c) To determine questions arising under the Pension Plan or this Agreement, including the power to determine the rights of Employees and their Beneficiaries, and their respective benefits, and to remedy ambiguities, inconsistencies or omissions.
ARTICLE VII FUNDING PENSION PLAN BENEFITS
Section I. IN GENERAL. In order to fund the benefits provided under the Pension Plan, each Employer, for the period that it is obligated by a Written Agreement, shall make contributions to the Trustees at the times required by that agreement. The rate of contributions shall be determined by the applicable Collective Bargaining Agreement or Participation Agreement, together with any amendments, supplements or modifications thereto. Notwithstanding the preceding sentence, if an Employer is required to make contributions by reason of a Participation or other Written Agreement that is not a Collective Bargaining Agreement, the amount of its contributions shall be the same as the amount required by the Collective Bargaining Agreement in effect between the Employer Association and the Union which covers Employees performing similar work. No Employee shall be permitted to contract or otherwise agree with or permit his Employer to provide wage or benefit payments which do not conform with the amount of contributions required under the provisions of a Collective Bargaining Agreement or Participation Agreement and any such contract or agreement shall be null and void. It shall not be a defense to any claim by the Trustees or an Employee for payment of delinquent contributions from an Employer that such Employer has entered into an agreement with any Employee purporting to waive the Employee's right to strict compliance with the provisions of the applicable Collective Bargaining Agreement or a Participation Agreement. All contributions shall be paid in the manner and form required by the Trustees.Section 2. DEFAULT IN PAYMENT OF CONTRIBUTIONS. Nonpayment by an Employer of any contributions when due shall not relieve any other Employer of his obligation to make payments. The Trustees may take any action necessary to enforce payment of the contributions and penalties due hereunder, including, but not limited to, proceedings at law and in equity. Any such action shall not prejudice the Union in any action it may wish to take on account of such nonpayment. The Trustees are authorized to establish a reasonable and lawful grace period by which contributions must be received; Employers making contributions that are not received before the expiration of said period and any Employer making late payments due under an installment agreement shall be assessed liquidated damages of 10% of the amount of the contributions which are owed. All Employers party to or otherwise bound by this Agreement acknowledge that the liquidated damages will be used to defer administrative costs arising by said delinquency and acknowledge the costs to be actual and substantial though difficult to ascertain; however the Employers acknowledge these costs to be at a minimum of 10%, waiving the necessity of any additional proof thereof. In addition, the delinquent contributions and any payments owed by an Employer pursuant to an installment agreement, shall bear interest up to the prime rate of interest plus two points charged by the Fund's custodian bank (or any other bank selected by the Trustees) or such other lawful amount as determined by the Trustees from the due date until totally satisfied. The Trustees are hereby given the power and authority to delegate the collection of contributions to a Collection Committee, which, in its discretion, may assess a lesser or greater amount or waive or suspend payment of liquidated damages, interest, audit fees or investigative costs in accordance with rules and procedures adopted by the Collection Committee and to compromise claims for delinquent contributions and related liabilities and collection costs where appropriate to settle cases favorably for the Fund. The Collection Committee may include trustees of the Laborers' Welfare Fund as members of the Committee.
In the event an Employer party to this Agreement or otherwise bound thereby becomes delinquent in his contributions or an installment agreement, or fails to post a bond as required, said delinquent Employer shall be liable for reasonable attorneys' fees and for all reasonable costs incurred in the collection process including court fees audit fees, investigative costs, etc. The term "reasonable attorneys' fees" as used herein shall mean all attorneys' fees in the amounts for which the Trustees become legally obligated including recovery of liquidated damages, audit costs, filing fees and any other expenses incurred by the Trustees.
The Trustees are hereby given the power and authority, in their discretion, to require any Employer to deposit with the Trustees, in advance, as a guarantee for the payment of monthly contributions, an amount equal to three (3) times the monthly contributions of such Employer, as estimated by the Trustees. At the option of the Trustees the Employer shall furnish the Trustees, in lieu of any cash deposit, a bond in an amount not less than Five Thousand Dollars ($5,000.00) or in an amount consistent with the terms of the current collective bargaining agreements. In the event an Employer is repeatedly delinquent in its contribution payments to the Pension Fund, the Trustees have the power and authority to require that Employer to purchase a bond in excess of $5,000.00 or the amounts set forth in the current collective bargaining agreements, in an amount equal to three (3) times the highest monthly contributions of the Employer in the twelve months prior to any delinquency. The Trustees, in their discretion, may also waive the requirement of a cash deposit or a surety bond in lieu of a personal guaranty when such waiver is warranted.
Section 3. REPORT ON CONTRIBUTIONS AND PRODUCTION OF RECORDS. The Employers shall make all reports on contributions required by the Trustees. Each Employer shall promptly furnish to the Trustees. on demand the names of its employees, their social security numbers, the hours worked by each employee and such other information as the Trustees may reasonably require in connection with the administration of the Trust and Pension Plan. The Trustees may at any time have an audit made by an independent certified public accountant or its representatives of the payroll of any Employer in connection with the said contributions and/or reports. All Employers shall be required to maintain records in compliance with procedures developed and communicated by the Administrator from the beginning of such Employer's participation in the Pension Fund forward unless given written authorization by the Administrator upon request to destroy said record. The Administrator shall require the Employer to designate the classification of all of his employees and if the Employer fails to do so, the Trustees shall conduct an investigation for the purpose of determining the classification of such employees and the results of said investigation shall be conclusive. Attached hereto as Addendum A are the current collection policies concerning Scheduling of Audits and Retention and Production of Employer Records adopted by the Trustees.
ARTICLE VIII FILING CLAIMS AND REVIEW OF DENIALS OF CLAIM
Section 1. FILING OF A CLAIM. Claims for the payment of any benefits provided by the Pension Plan shall be filed, in writing, in accordance with the Rules and Regulations set forth in Article 7 of the Pension Plan.
Exhibit A-3 AMENDED HEALTH AND WELFARE DEPARTMENT OF THE CONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCIL OF CHICAGO AND VICINITY
Appointed ***ILLIEGIBLE TEXT*** jointly execute, in writing, on behalf of the Board of Trustees, any notice or document, which executed notice or document shall be conclusive in favor of any person relying thereon.
ARTICLE VI EMPLOYER CONTRIBUTIONS
Section 1. IN GENERAL. In order to fund the benefits provided for by this Agreement, each Employer, for the period that it is obligated by a Written Agreement, shall make contributions to the Trustees pursuant to regulations established by the Trustees at the times required by that agreement. The rate of contributions shall be determined by the applicable Written Agreement, together with any amendments, supplements or modifications thereto. Notwithstanding the preceding sentence, if an Employer is required to make contributions by reason of a Written Agreement that is not a Collective Bargaining Agreement, the amount of its contributions shall be the same as the amount required by the collective Bargaining Agreement in effect between the Employer Association and the Local Union having jurisdiction over the geographic area in which the covered Employees perform their work. No Employee shall be permitted to contract or otherwise agree with or permit his Employer to provide wage or benefit payments which do not conform with the amount of contributions required under the foregoing provisions of this Section and any such contract or agreement shall be null and void. It shall not be a defense to any quent contributions from an Employer that such Employer had entered into an agreement with any Employee purporting to waive the Employee's right to strict compliance with the provisions of the applicable Collective Bargaining Agreement or other Written Agreement. All contributions shall be paid in the manner and form required by the Trustees.
Section 2. DEFAULT IN PAYMENT OF CONTRIBUTIONS. Nonpayment by an Employer of any contributions when due shall not relieve any other Employer of his obligation to make payments. The Trustees may take any action necessary to enforce payment of the contributions and penalties due hereunder, including, but not limited to, proceedings at law and in equity. Any such action shall not prejudice the Union in any action it may wish to take on account of such nonpayment. The Trustees are authorized to establish a reasonable and lawful grace period by which contributions must be received; contributions not received before the expiration of said period shall be assessed liquidated damages to 10% of the amount of the contributions which are owed. All Employers party to or otherwise bound by this Agreement acknowledge that the liquidated damages will be used to deter administrative costs arising by said delinquency and acknowledge the costs to be actual and substantial though difficult to ascertain; however the Employers acknowledge these costs to be at a minimum of 10% waiving the necessity of any additional proof thereof. In addition the delinquent contributions shall bear interest up to the prime rate of interest charged by the First National Bank of Chicago or such other lawful amount as determined by the Trustees from the due date until totally satisfied. In the event an Employer party to this Agreement or otherwise bound thereby becomes delinquent in his contributions and the Trustees place the account in the hands of legal counsel for collection, said delinquent Employer shall be liable for reasonable attorneys' fees and for all reasonable costs incurred in the collection process, including court fees, audit fees, etc. The term "reasonable attorneys' fees" as ***ILLEGIBLE TXT***sed herein shall mean all attorneys' fees in the amounts for which the Trustees become legally obligated including ***ILLEGIBLE TXT***ecovery of liquidated damages, audit costs, filing fees and ***ILLEGIBLE TXT***ny other expenses incurred by the Trustees.
The Trustees are hereby given the power and authority ***ILLEGIBLE TXT***n their discretion, to require any Employer who is not a ***ILLEGIBLE TXT***mber of a signatory Association to deposit with the Trustees, ***ILLEGIBLE TXT*** advance, as a guarantee for the payment of monthly ***ILLEGIBLE TXT***ntributions an amount equal to three (3) times the monthly ***ILLEGIBLE TXT***tributions of such Employer, as estimated by the Trustees. ***ILLEGIBLE TXT*** the option of the Trustees the Employer shall furnish the ***ILLEGIBLE TXT***ustees in lieu of any cash deposit a bond in an amount not ***ILLEGIBLE TXT***s than Five Thousand Dollars ($5,000.00), nor more than ***ILLEGIBLE TXT***fteen Thousand Dollars ($15,000.00) or an amount equal to ***ILLEGIBLE TXT***ree (3) times the monthly contributions of such Employer ***ILLEGIBLE TXT***estimated by the Trustees, whichever is greater, secured a corporate surety. Section 3. REPORT ON CONTRIBUTIONS AND PRODUCTION OF RECORDS. The Employers shall make all reports on contributions required by the Trustees. Each Employer shall promptly furnish to the Trustees, on demand, the names of its employees, their social security numbers, the hours worked by each employee, and such other information as the Trustees may reasonably require in connection with the administration of the Trust. The Trustees may at any time have an audit made by an independent certified public accountant or its representatives of the payroll of any Employer in connection with the said contributions and/or reports. All Employers shall be required to maintain records in compliance with procedures developed and communicated by the Administrator from the beginning of such Employer's participation in the Trust forward unless given written authorization by the Administrator upon request to destroy said record. The Administrator shall require the Employer to designate the classification of all of his employees and if the Employer fails to do so, the Trustees shall conduct an investigation for the purpose of determining the classification of such employees and the results of said investigation shall be conclusive.
AMENDMENT TO AMENDED AGREEMENT AND DECLARATION OF TRUST OF THE LABORERS' WELFARE FUND
The Trustees of the Laborers' Welfare Fund, pursuant to Article XI, hereby amend the Agreement and Declaration of Trust creating the Welfare Fund ("Trust Agreement"), originally made and entered into the 1st day of June, 1963, and as amended January 1, 1976, as follows:
WHEREAS the Trustees of the Welfare Fund have agreed to amend the Trust Agreement to enable them to exercise greater discretion with respect to the assessment of liquidated damages, interest and attorneys fees' in the event an Employer becomes delinquent in its payment of contributions to the Welfare Fund; and
WHEREAS the Trustees of the Welfare Fund have agreed to amend the Trust Agreement to conform the agreement to changes in the collective bargaining agreement and to enable them to exercise discretion with respect to the bonding requirements and to recover the costs of enforcing the requirements in court;
NOW THEREFORE, it is agreed as follows:
(1) Article VI, Section 2 shall be amended to read as follows:
Section 2. DEFAULT IN PAYMENT OF CONTRIBUTIONS. Nonpayment by an Employer of any contributions when due shall not relieve any other Employer of his obligation to make payments. The Trustees may take any action necessary to enforce payment of the contributions and penalties due hereunder, including, but not limited to, proceedings at law and in equity. Any such action shall not prejudice the Union in any action it may wish to take on account of such nonpayment. The Trustees are authorized to establish a reasonable and lawful grace period by which contributions must be received, Employers making contributions that are not received before the expiration of said period and any Employer making late payments due under an installment agreement shall be assessed liquidated damages to 10% of the amount of the contributions which are owed. All Employers party to or otherwise bound by this Agreement acknowledge that the liquidated damages will be used to defer administrative costs arising by said delinquency and acknowledge the costs to be actual and substantial though difficult to ascertain; however the Employers acknowledge these costs to be at a minimum of 10% waiving the necessity of any additional proof thereof. In addition, the delinquent contributions and any payments owed by an Employer pursuant to an installment agreement, shall bear interest up to the prime rate of interest, plus two points, charged by the First National Bank of Chicago or such other lawful amount as determined by the Trustees from the due date until totally satisfied. The Trustees are hereby given the power and authority, in their discretion, to assess a lesser amount or to waive liquidated damages, interest, audit fees or investigative costs.
In the event an Employer party to this Agreement or otherwise bound thereby becomes delinquent in his contributions or an installment agreement, or fails to post a bond as required, said delinquent Employer shall be liable for reasonable attorneys' fees and for all reasonable costs incurred in the collection process, including court fees, audit fees, investigative costs, etc. The term "reasonable attorneys' fees" as used herein shall mean all attorneys' fees in the amounts for which the Trustees become legally obligated including recovery of liquidated damages, audit costs, filing fees and any other expenses incurred by the Trustees.
The Trustees are hereby given the power and authority, in their discretion, to require any Employer to deposit with the Trustees, in advance, as a guarantee for the payment of monthly contributions an amount equal to three (3) times the monthly contributions of such Employer, as estimated by the Trustees. At the option of the Trustees the Employer shall furnish the Trustees in lieu of any cash deposit a bond in an amount not less than Five Thousand Dollars ($5,000.00) or in an amount consistent with the terms of the current collective bargaining agreements. In the event an Employer is repeatedly delinquent in its contribution payments to the Pension Fund, the Trustees have the power and authority to require that Employer to purchase a bond in excess of $5,000.00 or the amounts set forth in the current collective bargaining agreements in an amount equal to three (3) times the highest monthly contributions of the Employer in the twelve months prior to any delinquency. The Trustees, in their discretion, may also waive the requirement of a cash deposit or a surety bond in lieu of a personal guaranty when such waiver is warranted.
IN WITNESS WHEREOF, the Trustees hereby approve this Amendment as of the date and year indicated. This Amendment shall take effect immediately.UNION APPOINTED TRUSTEES EMPLOYER APPOINTED TRUSTEES _________________________ ____________________________ LIBERATO NAIMOLI CHARLES J. GALLAGHER _________________________ ____________________________ RANDY DALTON GARY LUNDSBERG _________________________ ____________________________ SCOTT PAVLIS DAVID H. LORIG _________________________ ____________________________ FRANK RILEY CHARLES COHEN _______________________________ ROGER T. VIGNOCCHI _______________________________ SAM VINCI
AMENDMENT TO AMENDED AGREEMENT AND DECLARATION OF TRUST OF THE LABORERS' WELFARE FUND
The Trustees of the Laborers' Welfare Fund, pursuant to Article XI, hereby amend the Agreement and Declaration of Trust creating the Welfare Fund ("Trust Agreement"), originally made and entered into the 1st day of June, 1963, and as amended January 1, 1976, as follows:WHEREAS the Trustees of the Welfare Fund have agreed to amend the Trust Agreement to enable them to exercise greater discretion with respect to the assessment of liquidated damages, interest and attorney's fees in the event an Employer becomes delinquent in its payment of contributions to the Welfare Fund;
NOW THEREFORE, it is agreed that Article VI, Section 2, 2nd paragraph, 1st sentence is deleted and substituted with the following:
In the event an Employer party to this Agreement or otherwise bound thereby becomes delinquent in his contributions or an installment agreement, or fails to post a bond as required, or refuses to provids the records required to be kept by contributing employers or submit to an audit, said Employer shall be liable for reasonable attorney's fees and for all reasonable costs incurred in the collection process, including court fees, audit fees, investigative costs, etc.
IN WITNESS WHEREOF, the Trustees hereby approve this Amendment as of the date and year indicated. This Amendment shall take effect immediately.9/14/99
DATED: UNION APPOINTED TRUSTEES: EMPLOYER APPOINTED TRUSTEES: ________________________ ______________________________ RANDY DALTON CHARLES COHEN ________________________ ______________________________ MARTIN FLANAGAN MARk DE***ILLEGIBLE TXT***EN ________________________ ______________________________ LI***ILLEGIBLE TXT*** NAIMOLI CHARLES J. GAILAGHER ________________________ ______________________________ SCOT FAVLIS DAVID H. LORIG ________________________ ______________________________ FRANK RILEY ROGER T. VIGNOCCHI ______________________________ SAM VINCIEXHIBIT A-4
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EXHIBIT B
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LABORERS' PENSION FUND and ) LABORERS' WELFARE FUND OF THE ) HEALTH and WELFARE DEPARTMENT ) NO. 06 C 2584 of the CONSTRUCTION and GENERAL ) LABORERS' DISTRICT COUNCIL of ) Judge Amy St. Eve CHICAGO and VICINITY, and JAMES S. ) JORGENSEN, ADMINISTRATOR OF THE ) Magistrate Judge Levin FUNDS, ) ) Plaintiffs, ) v. ) ) G.K. HARRIS, LTD., ) ) Defendant. )AFFIDAVIT
NOW COMES Marc M. Pekay who upon my oath affirms and says:1. I am the attorney who represents Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity and JAMES S. JORGENSEN, Administrator of the Funds (hereinafter collectively referred to as "the Funds" or "Plaintiffs"). My office is located at 30 N. LaSalle Street, Suite 2426, Chicago, Illinois 60602.
2. I am admitted to the federal bar and have regularly represented trust funds in matters involving collection of fringe benefits.
3. My billing fee for myself and lawyers in my office is $175.00 per hour.
4. I have spent 29.5 hours in this matter.
5. The total amount of Legal Fees that was billed was $5,162.50, most of which has already been paid by the Funds.
6. In addition to legal fees, the cost of filing this lawsuit and having the Company served as well as other costs were $465.00.
7. Therefore, the total amount of Legal Fees and Costs that was billed by the Law Offices of Marc M. Pekay and paid by the Funds is $5,627.50
Dated this 6th day of August, 2007.
By: Marc M. Pekay _____________ Marc M. Pekay Sworn and subscribed to before me this 6th day of August, 2007.
Notary Public
ORDER
This matter having come to be heard on the Motion of Plaintiffs LABORERS' PENSION FUND and LABORERS' WELFARE FUND OF THE HEALTH and WELFARE DEPARTMENT of the CONSTRUCTION and GENERAL LABORERS' DISTRICT COUNCIL of CHICAGO and VICINITY, and JAMES S. JORGENSEN, ADMINISTRATOR OF THE FUNDS (hereinafter collectively called "the Funds" or "Plaintiffs") for Motion for Entry of Judgment, due notice having been given, and the Court being fully advised in the premises,IT IS HEREBY ORDERED:
1. That a Judgment in the amount of Forty Six Thousand Four Hundred Thirty Four Dollars and ninety two cents ($46,434.92) is entered against G.K. Harris, Ltd. which includes contributions, dues, late fees and interest that was not paid for hours worked from June 1, 2006 through December 31, 2006, pursuant to the audit in the amount of Thirty Thousand Eight Hundred and Seven Dollars and forty two cents ($30,807.42); Ten Thousand Dollars ($10,000.00) wage and fringe benefit bond and Five Thousand Six Hundred Twenty Seven Dollars and fifty cents ($5,627.50).
2. That the Plaintiffs are entitled to all additional attorney fees and costs incurred in having to collect this Judgment.