International Union of Operating Engineers Local 98 Annuity Fund, Pension Fund, Health and Welfare Fund et al v. Bradway Construction, Inc. et al

Filing 52

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, Plaintiffs Motion for Summary Judgment and Motion for Costs and Attorneys Fees, (Dkt. No. {31}), is hereby ALLOWED in part. Defendants Cross Motion for Summary Judgment, (Dkt. No. {35}), is hereby DENIED. Plaintiffs Motion to Strike, (Dkt. No. {47}), is hereby DENIED as moot. On or before October 30, 2015, counsel for Defendants shall submit to the court supplemental materials regarding their challenge to the assessment of damages. Counsel for Plaintiffs may respond to this submission on or before November 30, 2015. The court will consider these submissions on the papers and determine what further proceedings, if any, are necessary. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

INTERNATIONAL UNION OF
OPERATING ENGINEERS LOCAL 98
HEALTH AND WELFARE FUND,
ET AL.,
Plaintiffs,
v.
BRADWAY CONSTRUCTION, INC.,
and SCOTT C. BRADWAY,
Defendants.

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C.A. No. 14-cv-10052-MAP

MEMORANDUM AND ORDER REGARDING
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND ATTORNEY FEES AND COSTS AND
DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT
(Dkt. Nos. 31 & 35)
September 30, 2015
PONSOR, U.S.D.J.
I.

INTRODUCTION

Plaintiffs1 bring this four-count complaint against
Defendants Bradway Construction, Inc., and Scott C. Bradway

1

Plaintiffs are the International Union of Operating
Engineers Local 98 Health and Welfare Fund, International
Union of Operating Engineers Local 98 Pension Fund,
International Union of Operating Engineers Local 98 Annuity
Fund, Local 98 Engineers Joint Training, Retraining, Skill
Improvement, Safety Education, Apprenticeship and Training
Fund, International Union of Operating Engineers Local 98
and Employers Cooperative Trust, Central Pension Fund of the
International Union of Operating Engineers and Participating
Employers, and International Union of Operating Engineers
Local 98, AFL-CIO (collectively, “Plaintiffs”).

(individually and as an officer of Bradway Construction),
pursuant to the Employee Retirement Income Security Act of
1974 (“ERISA”), as amended, 29 U.S.C. §§ 1145 & 1132(g)(2),
and the Labor-Management Relations Act of 1947(“LMRA”), 29
U.S.C. § 185.

Plaintiffs allege Defendants failed to make

timely contributions and remit employee payroll
withholdings, as well as to submit monthly reports of the
number of hours worked by each employee, as required under
the owner-operator and collective bargaining agreements.
Defendants filed cross-claims against Plaintiffs for
supplying false information to Defendants’ customers, who
justifiably relied on that false information, causing
pecuniary loss to Defendants, as well as for violation of
the Massachusetts Consumer Protection Act, Mass. Gen. Laws
ch. 93A, §§ 2 & 9, and for intentional interference with
advantageous business relationships.
Plaintiffs filed a motion for summary judgment, seeking
judgment in the amount of $459,534.08 for the period January
1, 2010, through May 31, 2013, and for fees and costs.
(Dkt. No. 31.)
judgment.

Defendants filed a cross-motion for summary

(Dkt. No. 35.)

For the reasons that follow, the
2

court will allow in part Plaintiffs’ motion and deny
Defendants’ motion.
II.

BACKGROUND

The facts are recited in the light most favorable to
the non-moving party, as required by Federal Rules of Civil
Procedure 56.

See Mass. Carpenters Cent. Collection Agency

v. Belmont Concrete Corp., 139 F.3d 304, 306 (1st Cir.
1998).
The primary issues in dispute are whether the OwnerOperator Agreement can expire and whether Defendants
adequately provided timely notice of their intent to
withdraw from the Collective Bargaining Agreement (CBA).
Accordingly, the court will review only the relevant
portions of the various contracts, particularly, those
provisions addressing the duration and termination of the
agreements.

Likewise, the court will limit its recitation

of the facts to those pertaining to the parties’ actions
surrounding the agreements.
The parties sharply dispute the time frame in which

3

certain employees performed covered work.2

These facts go

to the amount in damages claimed by Plaintiffs.

Because

Defendants have requested an opportunity to challenge
Plaintiffs’ calculation of damages, the court will deny
Plaintiffs’ motion for summary judgment on damages and allow
for further briefing.

It is not necessary to summarize

damage-related facts at this time.
A.

Terms of the Agreements
On July 30, 2005, Defendants signed an Owner-Operator

Agreement with Plaintiff Local 98, binding them to the terms
of the Massachusetts Heavy & Highway CBA.
K, Dkt. No. 31, Attach. 8.)

(Agreement, Ex.

The terms of the CBA covered

all work within the jurisdiction of the union, regardless of
whether that work was undertaken by a union member.

This

agreement provided that Defendants agreed to “adopt, abide
by and be bound by all the terms, conditions and provisions”
of agreements between the Union and the employers’
associations.

(Id. ¶ 3 at 2.)

2

Defendants dispute the hours considered as covered
work completed by Mark Bradway, Keith Bradway, and William
Fern for the period of January 1, 2010, to May 31, 2010, as
well as those hours worked by Scott Bradway in the same time
frame. (Defs.’ Resp. ¶¶ 17 & 18, Dkt. No. 37.)
4

Moreover, Defendants “agree[d] to be bound by any
current or subsequent amendments, modifications or
interpretations of the Agreements.”

(Id.)

Defendants also

assented to remitting contributions to Plaintiff Funds, as
well as to being bound to the declarations of trust for
those funds and their collections policies.

(Id. ¶¶ 4 & 9

at 2 & 4.)
With regard to termination, the Owner-Operator
Agreement provided: “This Owner-Operator Agreement will
remain in full force and effect unless terminated by either
party upon written notice at least thirty (30) days before
the expiration date of the Agreements in effect within the
jurisdiction of the Union and governing the Employer’s
work.”

(Id. ¶ 12 at 4.)

The year after the parties executed the Owner-Operator
Agreement, the Labor Relations Division of the Construction
Industry of Massachusetts and the union Plaintiff entered
into a new collective bargaining agreement (2006 CBA).

It

is undisputed that Defendants were bound to the 2006 CBA.
The terms of the 2006 CBA became effective as of June 1,
2006, and continued in effect until May 31, 2010, “subject
5

to the following conditions”: the agreement would continue
in force from year to year “unless either party on or before
March 1, 2010 or prior to March 1st in any year thereafter
gives notice in writing to the other party of its intention
to terminate.”

(2006 CBA 17, Ex. M, Dkt. No. 31, Attach. 8

at 45; Defs.’ Resp. ¶ 10 (“The Defendants agree that the
Owner-Operator Agreement and 2006 CBA binds Defendants to
the Agreement and Declarations of Trust....”), Dkt. No. 37.)
The 2006 CBA ran from June 1, 2006, until May 31,
2010, when the 2010 CBA came into force.

The termination

procedures were the same under both CBAs: a party had to
give notice in writing of its intention to terminate to the
other party on or before March 1st of the year the CBA would
expire.
B.

(2010 CBA 19, Ex. L, Dkt. No. 31, Attach. 8 at 25.)

Facts
Defendant Bradway Construction, Inc., is a

Massachusetts corporation; Defendant Scott C. Bradway is the
president and officer of Bradway Construction.

On June 30,

2005, Defendants signed the Owner-Operator Agreement with
Local 98, binding them to the then-in-effect CBA, which ran
from 2002 until mid-2006.

(Pls.’ Resp. ¶ 6 (“When
6

Defendants executed the Owner-Operator Agreement in June
2005, Defendants were bound to the [2002 CBA].”), Dkt. No.
40.)

On June 1, 2006, a new CBA came into force.

The

parties do not dispute that from June 1, 2006, through
December 31, 2009, Defendants complied with the terms of the
2006 CBA.
In December 2009, Defendant Bradway, in some fashion,
contacted Plaintiffs and advised that he and his company
“were no longer performing work covered by the [CBA] and
that Defendant Corporation would be ceasing operations.”
(Melville, Jr. Aff. ¶ 15, Dkt. No. 31, Attach. 3 at 5.)

The

record is not clear how this contact occurred, whether by
telephone, in person, or through a third party.

Defendants

assert that this “contact” with the Union also informed it
that Defendants “wanted to terminate all agreements.”
Bradway Aff. ¶ 2, Dkt. No. 46, Attach. 1 at 3.)

(S.

In response

to this contact, on December 17, 2009, Plaintiff Union
issued to Defendant Bradway, individually, a Certificate of
Honorable Withdrawal, effective December 31, 2009.

The

certificate states, “This is to certify, That Scott Bradway
having signed that he/she has ceased or intends to cease
7

performing the work of an Operating Engineer ..., and having
requested a withdrawal card, we hereby grant him/her this
Certificate of Honorable Withdrawal.”

(Dkt. No. 46, Attach.

3.)
In September 2010, Defendants received a copy of the
new 2010 CBA along with a letter requesting a signature.
The letter included a “Short Form” which, if signed by
Defendants, would have converted the parties’ Section 8(f)
relationship into a Section 9(a) relationship under the
National Labor Relations Act (“NLRA”).
¶ 13, Dkt. No. 39, Attach. 1.)

(Melville Reply Aff.

By letter dated September

30, 2010, Defendants acknowledged receipt of the 2010 CBA.
(Bradway Aff. ¶ 4 (“I received a letter dated September 15,
2010, from the Plaintiff Union requesting acceptance of the
2010 Massachusetts Heavy and Highway Agreement....”), Dkt.
No. 35, Attach. 1.)

Defendants replied by mail that they

would not renew the CBA.

(Dkt. No. 31, Attach. 7 at 80.)

Furthermore, Defendants stated, “Any and all agreements
between Bradway Construction, Inc. and I.U.O.E. Local 987
are now terminated.

Thank you for many years of service but

8

Bradway Construction will remain a non-union business.”3
Id.

Plaintiffs did not respond to that letter.

Thereafter,

there was no contact between the parties for almost two
years.
In 2012, Defendants were working on a project for
Balise Ford.

On November 29, 2012, after learning of this

job, Plaintiffs requested an audit of Defendants for the
period of January 2010 to November 2012.

On December 10,

2013, and again on January 2, 2013, Defendants sent letters
to Plaintiffs explaining that they had terminated the 2006
CBA and had not signed the 2010 CBA.

Plaintiffs responded

that they had not received a termination letter in September
of 2010, which Defendants then forwarded to them.
Also in December 2012, Plaintiffs sent a letter to the
Associated Builders & Contractors, as well as Balise Ford,
stating that Defendants failed to remit required reports and
3

It is undisputed that this letter effectively
terminated the Owner-Operator Agreement, effective May 31,
2013, the expiration date of the 2010 CBA. However, because
this September 30, 2010, letter was not received “at least
thirty (30) days before the expiration date of the
Agreements in effect” -- in other words, within thirty days
of May 31, 2010, when the 2006 CBA expired -- Defendants
were bound to the 2010 CBA. (Agreement ¶ 12, Ex. K, Dkt.
No. 31, Attach. 8.)
9

contributions.

As a result of this letter, Defendants

claim, the Associated Builders & Contractors did not retain
the services of Defendants for over a year.

(Defs.’ Resp. ¶

33, Dkt. No. 37.)
On January 8, 2014, Plaintiffs filed this four-count,
ERISA action against Defendants, seeking judgment in their
favor in the amount of $459,534.08 for the period January 1,
2010, through May 31, 2013, for unpaid monies due under the
terms of the 2010 CBA.

(Compl., Dkt. No. 1.)

Defendants

filed a counterclaim with three counts, for supplying false
information to Defendants’ customers, who justifiably relied
on that false information, causing pecuniary loss to
Defendants; for violation of the Massachusetts Consumer
Protection Act, Mass. Gen. Laws ch. 93A, §§ 2 & 9, in
misrepresenting facts to Defendants’ customers; and for
intentional interference with advantageous business
relationships.

(Dkt. Nos. 9 & 10.)

After Plaintiffs filed

this lawsuit, Defendants agreed to submit to an audit, which
resulted in a finding of $199,613.54 in contributions and
deductions owed by Defendants.
No. 31, Attach. 1 at 9.)
10

(Schweitzer Aff. ¶ 31, Dkt.

In February and March of 2015, the parties filed crossmotions for summary judgment.

(Dkt. Nos. 31 & 35.)

The

court heard argument on May 13, 2015, and took the motions
under advisement.

On August 27, 2015, Plaintiffs sought

leave to submit further filings, which the court permitted.
In early September, the parties submitted supplemental
memoranda4 addressing the impact on this case of the recent
First Circuit Court of Appeals decision in New England
Carpenters Central Collection Agency v. Labonte Drywall
Company, -- F.3d -- (1st Cir. 2015) (hereinafter Labonte
Drywall).

2015 WL 4597552 at *1 (1st Cir. July 31, 2015).
III.

DISCUSSION

The court will grant summary judgment where there is no
genuine disagreement over the material facts and the movant
is entitled to judgment as a matter of law.

4

Fed. R. Civ. P.

Plaintiffs have moved to strike certain statements
contained in Defendants’ Supplemental Memorandum (Dkt. No.
46), on the ground that those statements constitute
unsupported factual assertions. (Pls.’ Mot. to Strike, Dkt.
No. 47.) Specifically, Plaintiffs assert that Defendants
made allegations pertaining to the 2004-2009 audit
referenced in the pleadings, but not set forth in any sworn
affidavit. The court will deny this motion as moot, since
the facts surrounding the audit have no bearing on the
court’s decision, as discussed infra.
11

56(a);

Bonneau v. Plumbers & Pipefitters Local Union 51

Pension Trust Fund, 736 F.3d 33, 36 (1st Cir. 2013); Fed. R.
Civ. P. 56(a).

Where, as here, both parties have moved for

summary judgment, “the court must consider each motion
separately, drawing inferences against each movant in turn.”
Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir.
1997).
A.

Summary of the Law
The law is clear that courts will enforce the terms of

the CBA and Trust agreements and their concomitant
contractual obligations on employers.

See Cent. States, Se.

& Sw. Areas Pension Fund v. Cent. Transport, Inc., 472 U.S.
559, 581 (1985); Gastronomical Workers Union Local 610 &
Metro. Hotel Ass’n Pension Fund v. Dorado Beach Hotel Corp.,
617 F.3d 54, 62 (1st Cir. 2010).

Here, the primary dispute

between the parties is whether Defendants are bound to the
2010 CBA.

The parties do not dispute the terms of either

the 2006 CBA or the 2010 CBA, though they contest vigorously
how those terms ought to be interpreted.
The determination of whether Defendants’ terminated
their agreements with Plaintiffs is a question of law.
12

For

Defendants to have effectively terminated their agreements,
their notice had to be legally adequate, which is to say
adequate under the terms of the Agreements.

For a party’s

notice to withdraw from a CBA to be effective, it must be
“both timely and unequivocal.”

Haas Elec., Inc. v.

N.L.R.B., 299 F.3d 23, 27 (1st Cir. 2002), quoted by Labonte
Drywall, 2015 WL 4597552 at *4.

Timeliness means that the

notice came “prior to the date on which negotiations are set
to commence or actually commence”; unequivocal means that
the notice is “unambiguous.”
27-28.

Hass Elec., Inc., 299 F.3d at

The court must look to the provisions of the

agreements themselves for the requirements of a notice of
termination.

Labonte Drywall, 2015 WL 4597552 at *4 (noting

that, in that case, “[n]othing in the four corners of the
statewide agreement requires a party’s notice of termination
to explicitly include the words “termination,” “statewide
agreement,” or “collective bargaining agreement”).
The recent First Circuit decision in Labonte Drywall
underscores the court’s obligation to begin and end with the
language in the agreements.

There, the defendant employer

signed a statewide agreement with local unions and agreed
13

“to abide by the collective bargaining agreements” in place
between the union and various employer associations.
*1.

Id. at

The termination provisions of the statewide agreement

stated that it would be “co-extensive” with the terms of the
CBAs “unless either party to this statewide agreement gives
notice of termination ... in accordance with the applicable
notice provisions” of the CBAs.

Id.

The defendant sent the

union a letter stating that it was “no longer bidding or
doing union work.”

Id. at *2.

Thereafter, the defendant

consistently claimed it was no longer a part of the union.
The union understood this position, as it sent
representatives to the defendant to request that it rejoin
the union.

Id. at *2 & *5.

The First Circuit concluded that the defendant had
effectively withdrawn from the CBA under the termination
provisions of the statewide agreement.

While the statewide

agreement obligated the defendant to abide by the terms of
the CBA, it did not make the defendant a signatory it.
at *8.

Id.

Despite the plaintiff’s assertion that the

termination provisions of the CBAs controlled and that the
statewide agreement could not be terminated before the
14

expiration dates of the CBAs, the court determined that the
defendant’s “agreement to abide by the terms and obligations
of the collective bargaining agreement was only incorporated
by reference in the statewide agreement.”

Id. at *9.

Accordingly, the defendant needed only to abide by the
termination provisions of the statewide agreement -- and not
to those outlined in the CBAs -- which permitted a party to
end the agreement with a notice of termination.
In interpreting the language of the contracts, the
First Circuit reiterated the long-standing tenet of contract
interpretation that “the agreement must be read ‘in a
reasonable and practical way, consistent with its language,
background, and purpose.’”

Id. at *6.

Labonte Drywall also

stands for the proposition that courts can look to the
parties’ conduct for confirmation that they understood a
particular interpretation of the contract.

Id. at *5

(concluding that “the parties’ actions demonstrate that both
understood” the letter at issue had terminated the CBA).

In

sum, the First Circuit upheld the district court’s finding
that the defendant’s letter “expressed an unequivocal intent
to terminate” the bargaining relationship and was a “legally
15

effective termination.”

Id. at *4 & *5.

Finally, CBAs are governed by principles under ERISA,
the LMRA, the NLRA, and the case law interpreting those
statutes.

Section 515 contribution actions under ERISA are

a special class of action for which “Congress intended to
protect the Funds’ financial stability by limiting the scope
of issues litigable when they seek to recover employers’
contributions.”

La. Bricklayers & Trowel Trades Pension

Fund & Welfare Fund v. Alfred Miller Gen. Masonry
Contracting Co., 157 F.3d 404, 408 (5th Cir. 1998).
Accordingly, “only three defenses to a delinquency action
have been recognized by all of the circuit courts that have
considered the issues: (1) the pension contributions are
illegal, (2) the CBA is void ab initio, e.g. for fraud in
the execution, and (3) the employees have voted to decertify
the union as their bargaining representative.”

Id.

All

other claims are preempted.
With this legal framework in mind, the court will now
turn to the parties’ arguments for summary judgment.
B.

Analysis
In support of their motion for summary judgment,
16

Plaintiffs argue that Defendants are bound to the provisions
of the 2010 CBA and are, thus, liable for all delinquencies
and costs uncovered by the audit.

Defendants put forth two

arguments supporting their position that they are not
subject to the 2010 CBA.

First, Defendants maintain that

the Owner-Operator Agreement and 2006 CBA both expired in
May 2010 and they declined to sign on to the 2010 CBA.
Second, Defendants assert that they effectively terminated
their relationship with the Union in 2009, when Defendant
Bradway received from Plaintiffs a certificate of withdrawal
confirming Defendants’ intent to withdraw from the
agreements.
Turning to the first issue, whether Defendants were
bound to the 2010 CBA, Defendants argue that because they
never signed the 2010 CBA, they are not subject to its
terms.

Specifically, Defendants claim that -- pursuant to

basic contract law -- Plaintiffs presented the 2010 CBA to
Defendants as an offer, and by not signing the new CBA,
Defendants rejected the offer.

Defendants’ arguments are at

variance with the plain language of the agreements.
An agreement “must be read ‘in a reasonable and
17

practical way, consistent with its language, background, and
purpose.’”

Labonte Drywall, 2015 WL 4597552 at *6.

Here,

it is clear from the language, that the Owner-Operator
Agreement was of indefinite duration.

The agreement

specified that it would “remain in full force and effect
unless terminated by either party upon written notice at
least thirty (30) days before the expiration date of the
Agreements in effect within the jurisdiction of the Union
and governing the Employer’s work.”

(Agreement ¶ 3

(emphasis added), Ex. K, Dkt. No. 31, Attach. 8.)

So long

as a party did not terminate it within the period specified
in “the Agreements in effect,” with every new CBA, the
Owner-Operator Agreement continued in effect.
Further cutting against Defendants’ argument that the
agreement expired in 2006 is the fact that, when they first
signed the Owner-Operator Agreement, the applicable CBA in
force had been signed in 2002 and was set to expire the
following year.

By the Defendants’ logic, not only would

they not be bound to the 2010 CBA, they would not have been
bound to the 2006 CBA either -- a position they did not take
in 2006 and do not take now.

Cf. Labonte Drywall, 2015 WL
18

4597552 at *5 (considering the parties’ conduct in
determining their understanding of a termination notice).
Thus, because Defendants did not terminate the OwnerOperator Agreement before the expiration of the 2002 CBA, it
rolled over to the next agreement in effect, the 2006 CBA.
The same process bound them to the 2010 CBA.
Accordingly, the only route out from under the
obligations of the 2010 CBA for the Defendants would be an
effective termination of their relationship with Plaintiff
Union.

Defendants assert that they provided timely and

adequate notice to Plaintiffs of their intent to terminate
their relationship in December 2009.

The terms of the 2006

CBA state that it “will remain in full force and effect
unless terminated by either party upon written notice at
least thirty (30) days before the [CBA’s] expiration date.”
(2006 CBA 17, Ex. M, Dkt. No. 31, Attach. 8 at 45.)
Defendants point to the Certificate of Honorable Withdrawal
as satisfying the requirement both for written notice of
termination and for Plaintiffs’ understanding of Defendants’
intent.
In a somewhat novel twist, Defendants argue that
19

Plaintiffs themselves provided the written notice of
termination necessary to effectively terminate the
relationship.

Defendants assert that, once Plaintiffs

understood their desire to terminate the CBA, Plaintiffs
sent the Certificate of Withdrawal terminating the
collective bargaining relationship.
The first hurdle Defendants face with this argument is
that it flies in the face of Plaintiffs’ obvious intent in
sending the December 17, 2009, letter containing the
Certificate of Withdrawal.

Plaintiffs point out that

individual Defendant Bradway only notified the Union orally
of his intent to terminate his personal Union membership.
Plaintiffs clearly never intended that the December 17,
2009, letter in response or the Certificate of Withdrawal as
a termination of the Owner-Operator Agreement and the 2006
and 2010 CBAs.
The second hurdle -- an even more imposing obstacle -is Defendants’ argument is unsupported by either the
language of the Certificate of Withdrawal or the language of
the Agreements.

Though it is true that an effective notice

of termination does not need to employ any particular
20

language, it still must “express an unequivocal intent” to
terminate the collective bargaining relationship.
Drywall, 2015 WL 4597552 at *5.

Labonte

The Certificate of

Honorable Withdrawal states that Scott Bradway, not Bradway
Construction, Inc., has “cease[d] performing the work of an
Operating Engineer.”

(Dkt. No. 46, Attach. 3.)

Plaintiffs’

letter containing the Certificate of Withdrawal is addressed
to “Brother Bradway.”

(Id.)

The language unambiguously

refers to an individual, not a company.

While it terminates

Bradway’s individual relationship with the Union, it does
not even obliquely reference the collective bargaining
agreement between the Union and the employer.
Moreover, Defendants’ construction requires a reimagining of the termination provision of the 2006 CBA.

The

actual language of the contract states that the agreement
will continue in force from year to year “unless either
party .. gives notice in writing to the other party of its
intention to terminate.”
Attach. 8 at 45.)

(2006 CBA 17, Ex. M, Dkt. No. 31,

The natural reading of this provision is

that Party A must give notice in writing to Party B of Party
A’s intention to terminate.

Defendants’ argument would
21

change this to Party A giving notice in writing to Party B
of Party B’s own intention to terminate.

This

interpretation renders the word “notice” nonsensical.

Cf.

Labonte Drywall, 2015 WL 4597552 at *8 (rejecting the
plaintiff’s interpretation of the contract language because
it rendered “the ‘unless’ clause . . . superfluous and
contravene[d] the well-recognized ‘canon of construction
that every word and phrase of an instrument is if possible
to be given meaning’”).
Consequently, the most reasonable interpretation of the
termination provisions of the Owner-Operator Agreement and
the 2006 CBA is that the party seeking to terminate the
agreement give written notice to the other party of this
intention.

It is undisputed that Defendant Bradway’s

communication to the Union in 2009 regarding his desire to
leave the Union was not in writing.

The Certificate of

Honorable Withdrawal that the Union sent in response to
Defendant Scott Bradway’s notice of withdrawal of personal
membership in the Union does not constitute the timely and
unequivocal notice by the employer to terminate the CBA.
Individual Defendant’s Union membership is separate
22

from Corporate Defendant’s collective bargaining
relationship.

Thus, Defendants never provided adequate

notice of any intent to terminate the Agreement.
As Defendants conceded at oral argument, the court’s
ruling on Plaintiffs’ motion on the primary claims is
necessarily fatal to Defendants’ counterclaims.

Defendants’

cross-claims are preempted by ERISA, the LMRA, and the NLRA.
Trs. of Twin City Bricklayers Fringe Ben. Funds v. Superior
Waterproofing, Inc., 450 F.3d 324, 334 (8th Cir. 2006)
(concluding that state law claims were preempted under § 301
of the LMRA because they were intertwined with the terms of
the CBA and any resolution was dependent on analysis of the
CBA); Pingiaro v. Std. Ins. Co, 986 F Supp. 2d 96, 102 (D.
Mass. 2013) (finding ERISA preemption for claims of, inter
alia, implied covenant of good faith and fair dealing and
violation of chapter 93A because they “related to” an ERISA
plan).

Defendants’ reliance on contract law for support of

their arguments is misplaced in the ERISA arena.

All their

cross-claims are preempted by federal law.
In short, there was no adequate notice and Defendants
were obligated to perform their responsibilities under the
23

Owner-Operator Agreement and 2010 CBA through June of 2013.
It is undisputed that Defendants have no obligations after
that.

Under the terms of those agreements, Defendants must

remit any delinquent contributions.

Furthermore, Defendants

are liable for the contributions, interest, liquidated
damages, attorney’s fees and costs, including the costs of
the audit itself.

Because at oral argument, Defendants’

counsel made it clear that they wish to contest certain
details of the damages claim, the court will permit further
briefing on this issue.
IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for
Summary Judgment and Motion for Costs and Attorneys’ Fees,
(Dkt. No. 31), is hereby ALLOWED in part.

Defendants’ Cross

Motion for Summary Judgment, (Dkt. No. 35), is hereby
DENIED.

Plaintiffs’ Motion to Strike, (Dkt. No. 47), is

hereby DENIED as moot.
On or before October 30, 2015, counsel for Defendants
shall submit to the court supplemental materials regarding
their challenge to the assessment of damages.

Counsel for

Plaintiffs may respond to this submission on or before
24

November 30, 2015.

The court will consider these

submissions on the papers and determine what further
proceedings, if any, are necessary.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

25