Opinion
Civ. No. 07-1624-AA.
February 25, 2010
Stephen H. Buckley, Cary R. Cadonau, Brownstein, Rask, Portland, Oregon, Attorneys for plaintiffs.
Dennis E. Koho, Attorney At Law, Keizer, Oregon, Attorney for defendant.
OPINION AND ORDER
On November 13, 2009, plaintiffs filed a motion for summary judgment. Three months later, well beyond the eleven days mandated by Local Rule to file any response, defendant, represented by counsel, has not filed any opposition to this motion. Plaintiffs' motion is granted.
BACKGROUND AND DISCUSSION
Plaintiffs, the Trustees of nine employee benefit plans and a labor union, brought this lawsuit against defendant to recover fringe benefit contributions and union dues owed on behalf of defendant's employees who performed work pursuant to a collective bargaining agreement ("CBA"), with the Plumbers, Steamfitters and Marine Fitters Local No. 290 ("Union").
Plaintiffs, through Scribner, Scribner Sutton, a certified public accounting firm ("CPA firm"), conducted a payroll examination of defendant's payroll books and records beginning August 2003, through February 2009, in order to determine whether defendant paid all contractually required fringe benefit contributions on behalf of its employees who performed work covered by the CBA. The CPA firm determined that defendant failed to pay any amounts whatsoever to plaintiffs for the work performed during the period at issue. After the initial payroll examination was completed and the lawsuit at bar filed, plaintiffs served interrogatories upon defendant seeking information about the type of work performed by each of the employees on whose behalf contributions and dues were alleged to be owed. Defendant responded by noting which employees performed work that fell within the craft jurisdiction of the Union, i.e., the work was of the type for which defendant was required to pay fringe benefit contributions and union dues. Those responses allowed the CPA firm to revise the payroll examination report to conform to the evidence supplied by the defendant.
Plaintiffs now seek to recover the contributions and dues that defendant should have paid as determined by the payroll examination, together with liquidated damages, interest, the cost of conducting the payroll examination, and their attorneys' fees and costs.
Defendant owes the following amounts pursuant to the revised payroll examination report: $527,173.70 in fringe benefit contributions and union dues; $52,779.62 in liquidated damages; $4,707.50 in payroll examination fees; and $163,100.16 in interest calculated through October 31, 2009, with interest continuing to accrue at the rate of $117.40 per diem for each day on and after November 1, 2009 that the contributions and dues remain unpaid.
In the event fringe benefit contributions are not paid by the due date, the Trust Agreement that created the Funds (National Pension Fund, Local Pension Fund, Health Fund, Retiree Health Fund, Vacation Fund, Training Fund, Scholarship Fund, Education Fund, and Management Fund) provides that liquidated damages will be assessed in an amount equal to 10% of the delinquent or late paid pension contributions.
The Management Fund provides liquidated damages in an amount equal to 20%, however, the Fund has a practice of assessing liquidated damages in an amount equal to 10% of the delinquent or late paid contributions.
The Trust Agreements that created the Trust Funds provide that they are entitled to recover their attorneys' fees and accountants' fees when necessarily incurred to collect delinquent fringe benefit contributions. The CBA provides that the Union is entitled to recover its attorneys' fees and accountants' fees when necessarily incurred to collect delinquent union dues.
Daniel Eldridge operated "Kodiak Plumbing Service" as a sole proprietor beginning March 1999, then incorporated Shatzi Enterprises, Inc., in February 2001, and ultimately formed Shatzi Incorporated in February 2002. Shatzi Incorporated did business under the trade name of "Kodiak Plumbing Service" until March 2009, at which time Mr. Eldridge (and his wife) again became a sole proprietor using the trade name of "Kodiak Plumbing Service."
Effective May 1, 1999, Mr. Eldridge signed a Compliance Agreement for Master Labor Agreement with the Union. Based on the terms of that Agreement, Mr. Eldridge agreed to be bound by the Trust Agreements that created the Trust Funds, and agreed to pay contributions and union due to plaintiffs on behalf of his plumbers who performed work covered by the CBA beginning April 1, 1997, to March 31, 2003. The Compliance Agreement and CBA remained in full force and effect through March 31, 2003, after which time the defendant continued to be bound by the Compliance Agreement and CBA from April 1, 2003, through March 31, 2009, due to defendant's failure to effectively terminate the parties' contractual relationship. See Trustees of the Plumbers and Pipefitters Nat'l Pension Fund, et al. v. Daniel W. Eldridge, et al., CV 03-1213-JO, Findings of Fact and Conclusions of Law, p. 3 (in previous lawsuit involving same parties and facts, court found defendant liable to plaintiffs despite fact that defendant had not signed the CBA). See also,Plumbers Pipefitters v. Eldridge, et al., 232 Fed.Appx. 680 (9th Cir. 2007) (Shatzi Incorporated's obligations under the CBA did not end as of March 21, 2003).
Defendant's Responses to Interrogatories acknowledge that the individuals identified in the revised payroll examination report for whom plaintiffs seek to recover fringe benefit contributions and union dues were employees of defendant, that the unreported hours were actually worked for defendant, and that the unreported hours were worked within the "craft" jurisdiction of the Union. Defendant failed to report those hours, and failed to pay fringe benefit contributions and union dues based on those hours.
CONCLUSION
Plaintiffs' motion for summary judgment (doc. 56) is granted as follows: based on the 34,856.75 hours worked by defendant's employees for the time period August 2003, through February 2009, plaintiffs are entitled to recover the following amounts from defendant: $527,173.70 in fringe benefit contributions and union dues; $52,779.62 in liquidated damages; and $163,100.16 in interested calculated through October 31, 2009, with interest continuing to accrue at the rate of $117.40 per diem for each day on and after November 1, 2009 that the contributions and dues remain unpaid. Plaintiff is also entitled to recover a reasonable payroll examination fee from defendant, here, the amount of $4,707.50. See 29 U.S.C. 502(g)(2)(E) (the court shall award the plan "such other legal or equitable relief as the court deems appropriate."). Finally, plaintiffs are entitled to recover reasonable attorneys' fees and costs from defendant. Plaintiffs may submit an attorney fee petition to the court upon the close of this litigation. 29 U.S.C. 502(g)(2)(D) (the court shall award the plan "reasonable attorneys' fees and costs of the action, to be paid by the defendant.").
Plaintiffs' request for oral argument is denied as unnecessary.
IT IS SO ORDERED.