Painters District Council No. 2, et al v. Anthony's Painting LLC
Filing
69
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion for summary judgment [# 51 ] is granted, and plaintiff shall have summary judgment on its complaint against Anthonys Painting in the total amount of $164.393.59. A separate judgment in accord with this Memorandum and Order is entered this same date. Signed by Honorable Catherine D. Perry on 9/19/11. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAINTERS DISTRICT
COUNCIL NO. 2, et al.,
Plaintiffs,
vs.
ANTHONY’S PAINTING, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 4:09CV1647 CDP
MEMORANDUM AND ORDER
Plaintiffs are a labor union, four multiemployer pension and welfare trusts,
and employee trustees. They collectively bring claims against defendant
Anthony’s Painting, LLC for its failure to submit fringe benefit contributions due
under the parties’ Collective Bargaining Agreement (CBA), and now move for
summary judgment on their complaint. Anthony’s Painting opposes the motion,
arguing that plaintiffs fail to submit any admissible evidence in support of their
claims. Anthony’s Painting also admits that it failed to submit contributions, but
contends that this was not a breach of the CBA, because it had a prior course of
dealing with the union, because the union itself breached the CBA, and because it
paid some union members directly.
After reviewing the evidence, the parties’ arguments, and the record as a
whole, I conclude that plaintiffs have submitted admissible evidence in support of
their claims. I also conclude that no question of fact exists as to Anthony’s
Painting’s breach of the CBA, and so I will grant summary judgment to plaintiffs.
Discussion
The standards for summary judgment are well settled. In determining
whether summary judgment should issue, the court must view the facts and
inferences from the facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party has the burden to establish both the absence of a genuine issue
of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986); Celotex Corp.
v. Caltrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden,
the nonmoving party may not rest on the allegations in the pleadings but must set
forth by affidavit or other evidence specific facts showing that a genuine issue of
material facts exists. Fed. R. Civ. P. 56(e). At the summary judgment stage, I will
not weigh evidence and decide the truth of the matter, but rather I need only
determine if there is a genuine issue of material fact. Anderson, 477 U.S. at 249.
Plaintiffs’ Evidence in Support of Motion for Summary Judgment
As a preliminary matter, I conclude that plaintiffs have submitted admissible
evidence supporting their claims. In its opposition to summary judgment,
Anthony’s Painting takes issue with every affidavit submitted by plaintiffs in
-2-
support of their motion, arguing that the affiants lack personal knowledge and
expertise. Reading between the lines of Anthony’s Painting’s opposition and other
filings, it also seems that Anthony’s Painting challenges the exhibits attached to
these affidavits as well, contending that the affidavits do not properly authenticate
these exhibits, including the parties’ CBA. I disagree.
Rule 56(c)(4), Fed. R. Civ. P., provides that an affidavit “used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant . . . is competent to testify on the
matters stated.” Documents attached to an affidavit must be “authenticated by and
attached to an affidavit” before a court can consider them for summary judgment
purposes. Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir. 2005) (internal
citations and quotation marks omitted). Even if an affidavit is inadmissible,
however, a district court has broad discretion in permitting a movant to supplement
the affidavit and cure its defects. See DG&G, Inc. v. Flexsol Packaging Corp. of
Pompano Beach, 576 F.3d 820, 826 (8th Cir. 2009) (“The district court has broad
discretion in permitting supplementation of the summary judgment record . . . .”).
Here, in response to Anthony’s Painting’s arguments, plaintiffs have filed
supplemental affidavits in support of their motion. Each of these affidavits sets out
the affiant’s personal knowledge of the matters averred, as well as their
competence to testify to these matters. First, Joseph Barrett avers that he is the
-3-
Business Manager and Secretary-Treasurer of the union, plaintiff Painters District
Council No. 2. Barrett also avers that he is responsible for negotiating and
policing CBAs with employers such as Anthony’s Painting, and he authenticates
the CBA between Anthony’s Painting and plaintiffs as Exhibit B to his
supplemental affidavit. Finally, he authenticates the four trusts at issue in this case
as Exhibits to his supplemental affidavit. Similarly, Tina Pannier avers in her
supplemental affidavit that she is the plan manager for all of the Trusts, and that
she, in this position, received reports and funds from employers for these Trusts.
She also authenticates the parties’ CBA, which is attached to her affidavit, and
avers that Anthony’s Painting stopped paying contributions in August of 2009 and
stopped submitting reports in November of 2009. Brad Soderstrom avers that he is
a payroll auditor with the firm of Wolfe Nilges Nahorski, Certified Public
Accountants and Consultants, and that he has personal knowledge of the facts
averred in his affidavit, as he performed the accounting of Anthony’s Painting’s
records for plaintiffs.1 Finally, plaintiffs’ attorney, James P. Faul, avers that he has
1
Although not raised in a motion or adequately briefed, Anthony’s Painting also seems to
argue that the affidavit of Soderstrom is inadmissible because Soderstrom is not expert and thus
cannot testify as to accounting principles. I disagree. Even if Soderstrom were required to be an
expert in accounting before testifying to these issues, I conclude he is qualified to give such
opinions by his experience and training. See Fed. R. Evid. 702. In particular, Soderstrom has
been a payroll auditor with Wolfe Nilges Nahorski since 1999 and personally performed the
audit in this case. Moreover, plaintiffs timely disclosed him as a witness.
-4-
personal knowledge of the work he and other attorneys at his firm performed for
this case, of their billing rate, and of the reasonableness of the services performed.
Accordingly, each affidavit is based on the affiant’s personal knowledge and
establishes the affiant’s competence to testify as to the facts stated therein. I have
therefore considered them in deciding plaintiff’s motion. See Fed. R. Civ. P.
56(c)(4). I have also considered the documents attached to these affidavits,
because each affiant has authenticated these documents as accurate and true copies
of the parties’ CBA and the four trusts at issue in this case. See Shanklin, 397 F.3d
at 602. Moreover, because Anthony’s Painting’s only opposition to this evidence
was that it was inadmissible, this evidence is undisputed for summary judgment
purposes. See Fed. R. Civ. P. 56(e); Local Rules for the United States District
Court for the Eastern District of Missouri, Local Rule No. 4.01(E).
Undisputed Facts
Plaintiff Painters District Council No. 2 is a labor union comprised of
professional painters that exists for the purpose of negotiating with employers on
behalf of its members, including negotiating and policing CBAs between members
and employers. It is therefore a “labor organization” under section 2(5) of the
National Labor Relations Act (“NLRA”), 29 U.S.C. § 152(5), representing
employees in an industry affecting commerce within the meaning of section 3(4) of
ERISA, 29 U.S.C. § 1002(4). Painters District Council No. 2 has established
-5-
several benefit Trusts for its members – the Pension Plan, the Welfare Plan, the
Vacation Fund, and the Apprenticeship and Journeyman Training Fund – which all
require contributions from employers who hire members of Painters District
Council No. 2 and agree to be bound by a CBA requiring such payments.
Accordingly, these Trusts are “employee benefit plans” within the meaning of
sections 3(3) and 502(d)(1) of ERISA, 29 U.S.C. §§ 1002(3) and 1132(d)(1), and
are multi-employee plans under section 3(37)(A) of ERISA, 29 U.S.C. §
1002(37)(A). The remaining plaintiffs are the Joint Boards of Trustees for each of
the Benefit Plans, and so they are “plan sponsers” of their respective benefit plans
under section 3(16)(B) of ERISA, 29 U.S.C. § 1102(16)(B), and are fiduciaries
under section 3(21)(A) of ERISA, 29 U.S.C. § 1002(21)(A).
Anthony’s Painting is a painting company owned by husband and wife
Anthony and Heather Dattilo. When it first began hiring members of the Painters
District Council No. 2 in the mid-2000s, Anthony’s Painting entered into a CBA
with Painters, first signing the agreement on January 9, 2004, and renewing it on
November 30, 2005. Anthony’s Painting is therefore an “employer” within the
meaning of sections 3(5) and 515 of ERISA, 29 U.S.C. §§ 1002(5) and 1145, and
within the meaning of section 301 of the LMRA, 29 U.S.C. § 185. The CBA
required Anthony’s Painting to make contributions to the Pension, Welfare,
Vacation, and Apprenticeship and Journeyman Training Trusts and to submit
-6-
weekly reports showing the numbers of hours worked and contributions due. In
particular, the CBA provides that:
Employers shall have a signed agreement with Painters District
Council No. 2 . . . and make weekly contributions to the Painters
District Council No. 2 Welfare Plan, Painters District Council No. 2
Pension Plan, Painters District Council No. 2 Vacation Fund, Painters
District Council No. 2 Apprenticeship and Journeyman Training Fund
....
The CBA also bound Anthony’s Painting to the respective Trusts, and these Trusts
in turn required Anthony’s Painting to make contributions and submit weekly
reports. Finally, the CBA allows Painters District Council No. 2 to strike if
Anthony’s Painting “fails or refuses to pay wages or make fringe benefit
contributions in accordance with the Agreement . . . .” Through its owners
Anthony and Heather Dattilo, Anthony’s Painting understood that it entered into
the CBA with plaintiffs and was required to submit contributions to the Trusts as
well as reports.
Anthony’s Painting submitted contributions and reports until August 1,
2009. On that date, Anthony’s Painting stopped submitting contributions, and on
November 14, 2009, it stopped submitting weekly reports. No one at Painters
District Council No. 2 ever informed Anthony’s Painting that it could stop
submitting contributions or reports, and Anthony’s Painting never commenced
arbitration against plaintiffs for any grievance arising out of the CBA, or filed an
Unfair Labor Practice charge with the National Labor Relations Board. The CBA
-7-
and the Trusts state that an employer is liable for the principal as well as liquidated
damages and interest on unpaid contributions, together with plaintiffs’ reasonable
attorneys’ fees and accounting fees:
In any action instituted to recover fringe benefit contributions, wages,
union dues or Industry Fund contributions, or to recover unpaid
liquidated damages, the Employer shall be obligated to pay reasonable
attorney’s fees and reasonable accounting fees in addition to all
principal amounts due and in addition to other relief prescribed by
law.
After commencing this lawsuit, plaintiffs hired the accounting firm of Wolfe
Nilges Nahorski to review Anthony’s Painting’s records to determine the amount
of delinquencies owed by it for the period of June 1, 2009 through July 31, 2010.
Brad Soderstrom, a payroll auditor with Wolfe Nilges Nahorski, determined that
Anthony’s Painting performed 7545.5 hours of work during this period for which it
did not report hours or make contributions. Based on this total number of hours,
Sodetstorm determined that Anthony’s Painting owed contributions in the total
amount of $133,928.07, including interest and liquidated damages. Plaintiffs have
also incurred $25,599.72 in attorneys’ fees and $2740.00 in costs, including the
Court filing fee and the payroll examination. Plaintiffs now move for summary
judgment on their complaint.
Plaintiffs’ Claims
The plaintiffs bring claims under both ERISA and the LRMA. To begin
with, the Pension Plan, Welfare Plan, Vacation Fund, and Apprenticeship and
-8-
Journeyman Training Fund bring their claims under section 515 of ERISA, which
allows multiemployer benefit plans to collect unpaid contributions from an
employer bound by the terms of a collective bargaining agreement to contribute to
the trusts. See 29 U.S.C. § 1145 (“Every employer who is obligated to make
contributions to a multiemployer plan under the terms of a collectively bargained
agreement shall, to the extent not inconsistent with law, make such contributions in
accordance with the terms and conditions of such plan or such agreement.”). As
discussed above, it is undisputed that the Trusts are multiemployer benefit plans
under ERISA, and that Anthony’s Painting is an employer under ERISA. It is also
undisputed that Anthony’s Painting signed the CBA and was contractually bound
by it and the respective Trusts to submit weekly reports and contributions to the
Trusts. Finally, it is undisputed that Anthony’s Painting failed to submit
contributions for the time period of August 1, 2009 until July 31, 2010, and failed
to submit reports for the time period of November 14, 2009 to July 31, 2010.
Accordingly, I conclude that Anthony’s Painting is liable to the Trusts for failing
to submit reports and contributions as required by the parties’ CBA and associated
Trust documents.
Anthony’s Painting makes two arguments in response, but neither has merit.
First, Anthony’s Painting contends that it had always submitted late contributions
and late reports during the 2004-2008 time period, and that plaintiffs accepted such
-9-
late contributions and reports. Second, Anthony’s Painting suggests that it stopped
making contributions in November of 2009 after members of Painters District No.
2 “chased off Defendant’s employees from two (2) job sites . . . making it difficult
for the company to function.” Even if Anthony’s Painting submitted admissible
evidence in support of these two arguments, however, such evidence would fail to
create a issue of fact as to its duty to submit contributions and reports during this
period. Courts uniformly recognize only three defenses to ERISA liability for
unpaid contributions: (1) that the contributions are themselves illegal; (2) that the
collective bargaining agreement is void; or (3) that the employees have voted to
decertify the union as their bargaining representative. See, e.g., Agathis v. Starlite
Motel, 977 F.2d 1500, 1505 (8th Cir. 1992); Central States, Se. & Sw. Areas
Pension Fund v. Independent Fruit & Produce Co., 919 F.2d 1343, 1349 (8th Cir.
1990). It is not a defense that the parties made oral promises to disregard the text
of the CBA, see, e.g., Central States, Southeast & Southwest Areas Pension Fund
v. Gerber Truck Service Inc., 870 F.2d 1148, 1153 (7th Cir. 1989), or that the
union breached the CBA. See, e.g., Lewis v. Benedict Coal Corp., 361 U.S. 459,
469-71 (1960). Accordingly, because Anthony’s Painting only contends that it had
a prior, oral course of dealing with plaintiffs, and that plaintiffs breached the CBA,
it fails to create any issue of fact as to a valid defense to its liability. The Trusts are
therefore entitled to summary judgment on their ERISA claims.
- 10 -
Next, Painters District Council No. 2 brings claims under the LMRA,
asserting that Anthony’s Painting breached the parties’ CBA by failing to submit
union contributions and reports. A union may bring breach of contract claim
against an employer for unpaid contributions in federal court pursuant to section
301 of the LMRA, see 29 U.S.C. § 185, and courts must apply general principles of
contract law in interpreting the parties’ agreement. See, e.g., Agathos, 977 F.2d at
1508-09. If a collective bargaining agreement’s terms are clear and unambiguous,
they are to be enforced as written. See, e.g., Eastmount Constr. Co. v. Transport
Mfg. & Equip. Co., 301 F.2d 34, 39 (8th Cir. 1962).
Anthony’s Painting does not argue that there are any ambiguities in the
CBA, nor could it. The CBA’s terms are clear and unambiguous, and require
Anthony’s Painting to submit weekly reports and union contributions for each
union member it employs. Its failure to do so was therefore a breach of the parties’
CBA. For this reason, Anthony’s Painting’s evidence that it had a prior, oral
course of dealing with plaintiffs in which it submitted late contributions does not
absolve it from making timely and weekly contributions as required by the CBA.
Similarly, Anthony’s Painting’s other argument – that it was not liable to submit
contributions after union members quit work – also fails in light of the CBA’s clear
text. Specifically, there is no provision allowing Anthony’s Painting to stop
submitting contributions because of the union’s breach. In fact, the CBA allows
- 11 -
employees to strike if an employer fails to submit contributions to the Trusts, and it
is undisputed that Anthony’s Painting stopped submitting contributions before the
employees quit working. Finally, Anthony’s Painting argues that it is not liable
under the CBA for failing to submit contributions, because it paid employees a
“prevailing wage” instead. This is incorrect. The CBA required Anthony’s
Painting to submit contributions to the Trusts and the union, not to individual
employees. Because it is undisputed that Anthony’s Painting failed to do exactly
that, it breached the parties’ CBA.
Damages
Having determined that Anthony’s Painting is liable to plaintiffs under both
ERISA and the parties’ CBA for failing to submit contributions starting in August
of 2009, I must now determine damages to which plaintiffs are entitled. Section
502(g)(2) of ERISA requires this Court to award the Trusts unpaid contributions,
interest, liquidated damages, attorneys’ fees and costs, as well as any other
appropriate relief. See 29 U.S.C. § 1132(g)(2). Plaintiffs have submitted
undisputed evidence that the total amount of unpaid contributions, including
interest and liquidated damages, is $133,928.07. Plaintiffs have also incurred
$25,599.72 in reasonable attorneys’ fees and costs, and so Anthony’s Painting is
liable to the Trusts under ERISA in the total amount of $163,393.59.2
2
Anthony’s Painting responds that the Soderstrom’s calculations are inaccurate, yet it
submits no evidence or arguments supporting that claim. A party opposing summary judgment
- 12 -
In an LMRA breach of contract claim, the goal of awarding damages is to
place the non-breaching party in the position it would have been in had defendant
not breached the contract. See, e.g., Painters Dist. Council No. 2 v. Paragon
Painting Co., No. 4:08CV1501 DJS, 2010 WL 455227, at *8 (E.D. Mo. Feb. 3,
2010) (citing Fire Sprinklers, Inc. v. Icon Contracting, Inc., 279 S.W.3d 230, 235
(Mo. Ct. App. 2009)). Here, Painters District Council No. 2 submits undisputed
evidence that Anthony’s Painting failed to submit union dues in the total amount of
$4430.30, and that the interest on that amount is $1554.81. Additionally, the
parties’ CBA allows the union to collect attorneys’ fees and costs for Anthony’s
Painting’s breach, so the union is entitled to share in the award of attorneys’ fees
and costs.
Accordingly, based on this undisputed evidence, I conclude that Anthony’s
Painting is liable to plaintiffs in the total amount of $164,393.59, and I will enter
judgment in plaintiffs’ favor in that amount. Plaintiffs also request a complete
audit of Anthony’s Painting’s business records from September 1, 2005 until June
1, 2009 to determine if additional amounts are due. Anthony’s Painting offers no
opposition to this request, but plaintiffs also do not submit any evidence suggesting
must come forward with some evidence indicating that genuine issues of material fact exist, see
Fed. R. Civ. P. 56(e), and I need not “investigate the record in search of an unidentified genuine
issue of material fact to support a claim or defense.” Libel v. Adventure Lands of Am., Inc., 482
F.3d 1028, 1032 (8th Cir. 2007). Because Anthony’s Painting presents no evidence indicating
that these calculations are incorrect, and my own review of them reveals that they are correct,
plaintiffs’ calculations of damages is undisputed for summary judgment purposes.
- 13 -
that Anthony’s Painting was delinquent during this time period. I will therefore
deny the request at this time.
For these reasons,
IT IS HEREBY ORDERED that plaintiff’s motion for summary judgment
[#51] is granted, and plaintiff shall have summary judgment on its complaint
against Anthony’s Painting in the total amount of $164.393.59.
A separate judgment in accord with this Memorandum and Order is entered
this same date.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 19th day of September, 2011.
- 14 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?