Painters Union Deposit Fund v. G & T Commercial Coatings, Inc. et al

Filing 43

ORDER FOR SUPPLEMENTAL BRIEFING re 24 MOTION for Summary Judgment filed by Painters Union Deposit Fund., Set Motion Deadlines/Hearings as to 24 MOTION for Summary Judgment :( Response due by 5/21/2014) Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TRUSTEES OF THE PAINTERS,
UNION DEPOSIT FUND,
Plaintiff,

Civil Action No.
13-CV-13261

vs.
Honorable Patrick J. Duggan
G&T COMMERCIAL COATINGS,
INC. and ANASTASIOS G. LIANGIS,
Defendants.
_________________________________/
ORDER FOR SUPPLEMENTAL BRIEFING
This is an action for unpaid fringe benefit contributions. The matter is presently before
the Court on the parties’ cross-motions for summary judgment, which are now fully briefed.
An issue in this case is the meaning of the following provision of the pertinent collective
bargaining agreement (CBA):
Employer shall contribute monthly or weekly or at such other intervals as shall be
required . . . the sum of [$16.08] for each hour worked during that month or other
interval by all employees employed by him and covered by this Agreement . . .
On the one hand, Defendants argue that the phrase “and covered by this Agreement” modifies
“each hour worked,” thus requiring the employer to contribute only for hours spent performing
work that is covered under the CBA. According to Defendants, “covered” work is defined
elsewhere in the CBA as “any preparatorial work, wall washing, painting, hanging of wallpaper,
or wall covering, removal of wallpaper or paper cleaning.”
On the other hand, the Trustees appear to argue that the phrase “and covered by this
Agreement” modifies “all employees” so that if any covered employee performs any work at all

1

– regardless of whether the work itself is covered or uncovered – the employer is obligated to
contribute for every hour worked.1 Yet the Trustees have litigated this case as if they agree with
the interpretation urged by Defendants inasmuch as the amount of damages sought in this matter
was computed by the Trustees’ auditor, Jeffrey Ruehle, based on his belief that Defendants are
obligated to contribute only for hours spent performing covered work. See Ruehle Aff. ¶ 13 (“I
amended the debit memo downward because I was satisfied to the extent of the amount of the
reduction given . . . that payments made to the employees through the general register were not
for covered work.”). Even counsel for the Trustees, in addition to the Trustees’ auditor, also
apparently believes that contributions are only required for hours spent performing covered work
because he explicitly said so in his client’s summary judgment brief: “Under the governing
[CBA], Defendant G&T is obligated to make fringe benefit payments at the designated hourly
rate for each hour of covered work performed.” Page ID 812-813.
By May 21, 2014, the Trustees shall file a supplemental brief, not to exceed ten pages in
length, addressing the following questions:
(1) Do the Trustees agree with Defendants that the above-quoted CPA provision should
be interpreted to mean that Defendants are obligated to contribute only for hours spent
performing covered work?
(2) If the answer to question (1) is “yes,” do the Trustees agree that “covered” work
means “any preparatorial work, wall washing, painting, hanging of wallpaper, or wall
covering, removal of wallpaper or paper cleaning”?
(3) If the answer to question (1) is “no,” have the Trustees waived their right to assert the
argument that contributions must be made for all work performed by covered employees
by virtue of the position taken by Mr. Ruehle, combined with the above-quoted statement

1

In support of this interpretation, the Trustees rely heavily on a dated, unpublished case decided
by another judge of this court in which the exact same CBA provision was interpreted in the
manner urged by the Trustees. See Painters Union Deposit Fund v. D.P.L. Painting, Inc., No.
83-CV-0374 (E.D. Mich. Apr. 1, 1985). So far as the Court is aware, no other court has
interpreted the exact CBA language at issue in this case.
2

by counsel conceding that contributions are required “for each hour of covered work
performed”?2
If Defendants wish to be heard regarding the three questions posed to the Trustees above, they
may file a supplemental brief, not to exceed ten pages in length, within seven days of the date on
which the Trustees filed their supplemental brief.
SO ORDERED.

Dated: May 14, 2014

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Stephen D. Kursman, Esq.
Daniel G. Helton, Esq.
Robert E. Day, Esq.

2

The Court is aware of the Trustees’ separate argument that, as a result of Defendants’ alleged
inadequate recordkeeping, Defendants are liable for contributions on all hours worked by a given
employee during a period in which it is shown that the employee performed some covered work.
See Mich. Laborers’ Health Care Fund v. Grimaldi Concrete, Inc., 30 F.3d 692, 696 (6th Cir.
1994). This argument is entirely separate from the argument that the CBA language requires
contributions for all hours worked by covered employees. In their supplemental brief, the
Trustees should address only their argument regarding the CBA language and not their argument
regarding the applicability of Grimaldi Concrete’s burden-shifting framework.
3