TEAMSTERS HEALTH AND WELFARE FUND OF PHILADELPHIA AND VICINITY et al v. COURIER-POST COMPANY

Filing 36

MEMORANDUM OPINION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Magistrate Judge Joel Schneider on 12/30/2015. (drw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TEAMSTERS HEALTH AND WELFARE
FUND OF PHILADELPHIA AND
VICINITY, et al.,
Civil No.

Plaintiffs,

15-844 (JS)

v.
COURIER-POST COMPANY,
Defendant.
MEMORANDUM OPINION WITH
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This

Memorandum

Opinion

with

findings

of

fact

and

conclusions of law serves as the Court’s decision with regard to
the non-jury trial of this matter held on December 14 and 15,
2015.

Pursuant to 28 U.S.C. § 636(c), the parties consented to

the jurisdiction of this Court to hear this matter. The Court
has

jurisdiction

over

this

matter

pursuant

to

29

U.S.C.

§§

185(a), 1132 and 1145, and 28 U.S.C. § 1367. For the reasons to
be discussed, the Court will enter Judgment in plaintiffs’ favor
in the amount of $6,891.72, plus appropriate liquidated damages,
interest, attorney’s fees and costs.
Background
Plaintiffs,

Teamsters

Health

and

Welfare

Fund

of

Philadelphia and Vicinity (“H&W Fund”), Teamsters Pension Fund
1

of Philadelphia and Vicinity (“Pension Fund”), and Adam Garner,
Administrator, filed this ERISA collection action on February 4,
2015.

(The

H&W

Fund

and

Pension

Fund

will

be

collectively

referred to as the “Funds.”) In brief summary, the Funds are
multi-employer
medical

Trust

Funds

insurance,

participants

who

work

among
for

that

provide

other

pension

benefits,

contributing

benefits
to

employers.1

and

eligible
Plaintiffs

seek to recover from defendant, Courier-Post Company (“C-P”),
alleged delinquent payments due the Funds for the calendar years
2010-2011. Plaintiffs claim C-P owes $27,216.21 to the Pension
Fund and $2,824.93 to the H&W Fund for a total delinquency of
$30,041.14.
At all relevant times C-P was an employer and a party to
three Collective Bargaining Agreements (“CBA’s”) with Teamsters
Local

Union

Drivers,

(2)

No.

628.

The

Circulation

three

bargaining

Representatives

units

(“DSMs”),

were:

(1)

and

(3)

Single Copy Merchandisers (“SCMs”). Pursuant to the CBA’s the CP contracted to make payments to the Funds. The amount of the
payments depended upon the language and dollar sums set forth in
the CBA’s. Since the CBA’s were different for each of the three
relevant bargaining units, a summary of the pertinent provisions
for each unit is provided.
Drivers
1

The Trust Agreements were entered into evidence as Joint
Exhibits (“J”) 10, 11.
2

Time Period
1.

Trial Exhibit

9/1/00–
8/31/06

Joint Exhibit
(“J”)-1

Pension Payment
Due
For “all shifts
worked by
regulars and
regular extras,
as well as
vacation and
holiday
shifts.”

2A. 11/9/063/11/11

J-5 (a/k/a P9A)

2B. 11/9/06 –
3/11/11

J-4

For “each shift
worked, as well
as vacation
shifts covered
by this
Agreement.”

3.

J-6

For “all shifts
worked by
regulars and
regular extras,
as well holiday
shifts (not
including
personal
holidays.)”

3/12/113/11/13

H&W Payment Due
For “each shift
worked.”

For “each shift
worked by
regulars and
regular
extras.”
For “all
drivers on the
regular extra
list…, the
total number of
shifts
worked[.]”
For “each shift
worked by
regulars and
regular
extras.”

Rows 2A and 2B above concern a fact dispute between the
parties.

Plaintiffs

contend

the

signed

November

9,

2006

extension for the Drivers (J-5) was in effect through March 11,
2011. C-P disagrees. C-P contends the terms of the Drivers’
unexecuted November 9, 2006 Proposal (J-4) was in effect through
March 11, 2011. As discussed infra, the Court finds that J-5,
and not J-4, was in effect for the Drivers through March 11,
2011.

Nevertheless,

as

will

also
3

be

discussed,

it

makes

no

difference to the result in the case whether plaintiffs or C-P
is right on this issue.
Circulation Representatives (“DSM’s”)
Time Period

Trial Exhibit

1. 9/1/00–
8/31/06

J-2

2. 3/12/113/11/13

J-7

Pension Payment
Due
For “all shifts
worked, as well
as vacation and
holiday shifts.”
For “all shifts
worked, as well
holiday shifts
(not including
personal days.)”

H&W Payment Due
For “all shifts
worked, as well
as vacation and
holiday shifts.”
For “each shift
worked.”

Single Copy Merchandisers (“SCM’s”)
Time Period

Trial Exhibit

1. 9/1/00–
8/31/06

J-3

2. 3/12/113/11/13

J-7

Pension Payment
Due
For “each shift
worked, as well
as vacation and
holiday shifts.”
For “all shifts
worked, as well
holiday shifts
(not including
personal days.)”

H&W Payment Due
For “each shift
worked covered
by this
agreement.”
For “each shift
worked.”

As is apparent, the CBA for the DSM’s and SCM’s merged (J-7) for
the March 12, 2011 – March 11, 2013 time period.
Although not the only issue in dispute, the primary focus
of the trial, and the major portion of plaintiffs’ damage claim,
involves whether Pension Fund payments had to be paid for Local
628’s “personal holidays.” It was apparent from the testimony at
trial,

and

the

Court

so

finds,
4

that

the

parties

equated

“personal holidays” and “personal days” in the sense that these
were paid days off. In other words, a personal holiday or a
personal day was a work day that someone could take off with pay
for any reason.2 (Personal holidays/personal days are different
from vacation or sick days.) The resolution of whether Pension
Fund

payments

had

to

be

made

for

“personal

holidays”

is

dependent on how the term “holiday shift” is interpreted. In
addition to personal holidays/personal days and vacation days,
Local 628 members were entitled to six (6) paid holidays.3 The
crux of the parties’ dispute is whether C-P was required to make
payments

to

the

Funds

for

the

workers’

paid

personal

holidays/personal days. Plaintiffs say yes; C-P says no. C-P
contends that although it agreed to make payments to the Pension
Fund

for

the

six

paid

holidays,

it

did

not

agree

to

make

payments to the Pension Fund for paid personal holidays/personal
days.
The Court’s damage analysis is discussed infra. For present
purposes the Court notes that the main issue just discussed only
applies to Pension Fund payments for the years 2010 and 2011.4 An

2

Albeit, the CBA’s required that notice be given for a requested
personal day. Pursuant to the CBA (J-1, Section VI) the Drivers
were entitled to 5 or 6 personal holidays/personal days.
3 These are New Year’s Day, Memorial Day, Fourth of July, Labor
Day, Thanksgiving and Christmas.
4 To be clear, as to the Drivers only J-1 and 5 are at issue.
Since J-5 did not change the amount and terms of required
payments to the Pension Fund, the controlling language for the
Drivers carried over from J-1 until March 11, 2011. As to the
5

alleged deficiency exists for all three bargaining units but
most of the delinquency involves the Drivers.

The parties do

not dispute that as of March 12, 2011, Pension Fund payments
were not due for paid personal holidays/personal days. See J-6
and 7. Thus, the CBA interpretation issue to be addressed only
involves payments due the Pension Fund for the time period of
January 1, 2010 to March 11, 2011.

The relevant language in J-

1, 2 and 3 is essentially the same.
Plaintiffs presented three (3) witnesses at trial: (1) Adam
Garner, (2) Fred Del Giorno and (3) Beth Raddi. C-P presented
one witness—Thomas Hearon. Garner is employed by Administrative
Personnel Services, Inc. (“ASP”) and replaced William J. Einhorn
on September 1, 2015 as the Administrator of the Funds.5 Prior to
this

he

worked

as

Assistant

Administrator.

Tr.

32:18-20.

He

started working for the Funds on April 30, 2012. Id. 54:21-23.
Del Giorno is also employed by ASP but as a Senior Auditor. Like
Garner and Del Giorno, Raddi is employed by ASP and is the Audit
and Accounts Receivables Manager. She supervised Ed Stipa who
did the audits at issue in the case. Hearon is currently the
Regional

Director

and

General

Manager

for

Gannett

Publishing

DSM’s the controlling language is in J-2. As to the SCM’s
controlling language is in J-3. Even though J-2 and
originally expired on October 31, 2006, the parties do
dispute that the Pension Fund payment terms carried over
March 11, 2011.
5 ASP provides administrative services to the Funds. Trial
Transcript (“Tr.”) 32:2-9.
6

the
J-3
not
to

Services. Tr. 240:22-25. He worked at the C-P’s Cherry Hill
facility from April 2007 to April 2013. Tr. 241:22 to 242:1.
Prior to 2011 he was the General Manager and Operations Director
at the Cherry Hill location. Tr. 241:18-21.
As noted, pursuant to the CBA C-P was required to make
monthly contributions to the Funds. According to Garner, C-P’s
payments

were

made

on

the

“honor

system.”

Tr.

36:14-19.

Nevertheless, the Funds conducted audits to verify that C-P made
the correct monthly payment. Tr. 37:15 to 38:2. Sometime in 2014
Ed

Stipa

completed

completed
his

his

audits

audits

Del

of

Giorno

the

did

a

Funds.
“peer

After

Stipa

review”

and

determined that the audits were correct. Tr. 163:21-23. Stipa’s
audits

were

introduced

(Drivers-2010),
2010),

9D

9B

into

(Drivers-2011),

(Circulation

Merchandisers-2010),

evidence

and

9C

as

(Single

Exhibits

(Circulation

Managers-2011)
9F

Joint

Copy

9E

9A

Managers-

(Single

Copy

Merchandisers-2011).

Each of the audits contains a Difference Code Classification and
Audit Code Classification.

From these Codes one is able to

determine how Stipa calculated the total amount owed to the
Funds. The Codes also identify the particular employee involved
in the alleged delinquency and the relevant time period.6 The
relevant Difference Code Classification at issue here is P (“Up
through March 11, 2011, contributions are due the Pension Fund
6

The Codes identify the who, when and why regarding Stipa’s
conclusion that C-P made overpayments and underpayments.
7

for paid personal holidays.”). Plaintiffs contend wherever a P
is listed in the last column of Stipa’s audits C-P did not make
a required Pension Fund payment for a personal holiday/personal
day. The number of “P” days at issue for the years 2010 and 2011
is listed on the Difference Code Classification sheet.

See

generally Tr. 145:6 to 171:20.
On

May

23,

2014,

Stipa

notified

C-P

of

the

alleged

deficiency at issue. Stipa contended that $27,216.21 was due the
Pension Fund and $2,824.937 was due the H&W Fund. (P-4).8 After
Stipa sent his May 23, 2014 notice the parties exchanged letters
and emails regarding plaintiffs’ audit. (P5 to 9; J-8). The sum
and substance of these exchanges was that C-P disputed whether
it was required to make payments to the Pension Fund for the
members’

paid

personal

holidays/personal

days.

The

correspondence did not address any other substantive dispute.
Discussion
1.
Prior
objected

Motion to Amend/Request to Strike Del Giorno
to
to

the
the

presentation

of

introduction

of

plaintiffs’
any

evidence

evidence

C-P

regarding

plaintiffs’ damage claim other than whether Fund payments had to
7

Of the $2,824.93 allegedly due the H&W Fund, $2,262.08 was for
medical bills the H&W Fund paid that should not have been paid
but for C-P’s errors.
8
Stipa’s audit revealed C-P made $2,745.89 in overpayments.
However, the Funds did not give C-P a credit because C-P did not
send a timely written credit request. P-4; see also Tr. 134:10
to 135:17.
C-P does not challenge this assertion and has not
requested a credit for its overpayments.
8

be paid for the Drivers’ personal holidays/personal days. C-P
claimed this was the only claim made in plaintiffs’ complaint.
C-P also objected to testimony from Del Giorno who was only
identified as a witness on the eve of trial. The Court overruled
C-P’s objections. The Court will expand on the reasons it gave
for its ruling.
It is well-settled that requests to amend complaints are
liberally granted unless there is undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure

deficiencies

by

amendments

previously

allowed,

undue

prejudice to the opposing party or futility of amendment. See
generally Cincerella v. Egg Harbor Tp. Police Dept., C.A. No.
06-1183 (RBK), 2007 WL 2682965, at *2 (Sept. 6, 2007). It is
also “well-settled that prejudice to the non-moving party is the
touchstone for the denial of an amendment.” Cornell & Co., Inc.
v. Occupational Safety and Health Review Commission, 573 F.2d
820, 823 (3d Cir. 1978). Plaintiffs’ oral motion to amend the
complaint
plaintiffs’

was

granted

amendment

because
seeking

C-P
to

was

not

prejudiced

recoup

all

their

by

claimed

damages. The reason is because C-P was on notice of plaintiffs’
damage claim since the outset of the case. Plaintiffs seek the
same damages they identified in their complaint.

See Complaint

¶¶ 10, 13, 15, 19. Further, all of Stipa’s audits were attached
as exhibits to plaintiffs’ complaint. See Complaint Exhibits 2,
9

7 [Doc. Nos. 1-5, 10]. And, plaintiffs produced Stipa’s audits
in discovery.
The Court is not persuaded by C-P’s argument that it did
not know until the day of trial that plaintiffs would be seeking
damages

beyond

Drivers’

holidays/personal

Pension

days.

The

Fund

reason

payments
is

for

because

personal
plaintiffs

produced their audit reports in discovery and these reports were
introduced in evidence as Joint Exhibits. See J-9(A-F). Also,
the audits were attached to plaintiffs’ complaint. Plaintiffs
are not seeking damages other than what is identified in the
audit

reports

produced

in

attached
discovery.

to

their

Thus,

the

complaint,
Court

which

finds

they

that

at

also
all

relevant times C-P was on notice of plaintiffs’ damage claim and
had an opportunity to conduct discovery to contest the claim.
This

being

the

case

C-P

was

not

prejudiced

by

plaintiffs’

amendment.
It is true that plaintiffs’ oral motion to amend was made
late. However, the mere fact that plaintiffs’ motion could have
been

made

earlier

is

not

determinative

on

whether

the

proposed amendment should be granted. See Adams v. Gould, Inc., 739
F.2d 858, 869 (3d Cir. 1984)(the mere passage of time, without
more, does not require that a motion to amend a complaint be
denied); Deakyne v. Commissioners of Lewes, 416 F.2d 290, 300 n.
19 (3d Cir. 1969)(delay alone is an insufficient ground to deny
10

an amendment). It is not unusual for pleadings to be amended
long after a complaint is filed and even at the summary judgment
stage of a case.

Adams, 739 F.2d at 869.

Indeed, amendments may

be made during trial, after the close of testimony, or even after
judgment.

See

Wright,

Miller

&

Kane,

Federal

Practice

and

Procedure: Civil 3d §1494, pp. 56-57.
As to the request to strike Del Giorno, C-P’s objection was
also overruled. It is true that he was identified late. However,
the substance of his testimony was not a surprise to C-P. Del
Giorno merely “peer reviewed” Stipa’s audits and his testimony
was not materially different from what Garner offered. Moreover,
C-P’s

counsel

Further,

“[t]he

was

prepared

Third

to

Circuit

cross-examine
has,

on

Del

several

Giorno.

occasions,

manifested a distinct aversion to the exclusion of important
testimony absent evidence of extreme neglect or bad faith on the
part of the proponent of the testimony.” ABB Air Preheater, Inc.
v. Regenerative Environmental Equipment Co., Inc., 167 F.R.D.
668, 671 (D.N.J. 1996)(citations omitted). This did not occur
here.
2.

Which Driver Proposal was in Effect from 11/9/06 –
3/ll/11?

Although not determinative, the Court will briefly address
whether J-5 or J-4 was in effect for the Drivers from November
9, 2006 to March 11, 2011. Not surprisingly, the Court holds
that the signed copy of the Proposal (J-5) was in effect. This
11

Proposal
President

was
and

signed

on

Publisher

November

9,

2006

Courier-Post,

by

and

Mark
John

J.
P.

Frisby,
Laigaie,

President Teamsters Union Local No. 628. J-5 was admitted into
evidence

and

there

is

no

contention

the

signatures

on

the

Proposal are not genuine or authentic. Notably, Hearon did not
testify that J-5 was not the controlling contract. Nor could he
justify

why

the

Court

should

give

effect

to

the

unsigned

Proposal (J-4) rather than the signed Proposal (J-5). Hearon
simply testified he was given J-4 and that is what he used to
govern the relationship with plaintiffs. Tr. 282:24 to 283:3.
Although Hearon assumed J-4 was in effect, he did not challenge
the validity of J-5. Although Hearon had a good faith belief
that J-4 was in effect, this is not enough to discredit the
validity of J-5. Nonetheless, this ruling is for naught. No
matter which Proposal was in effect the Court would still rule
in C-P’s favor on the main issue to be addressed.
3.

Fund Payments for Personal Holidays/Personal Days

The Court will now focus on the crux of the case--how to
interpret the parties’ CBA’s. As noted, although J-1, 2 and 3
are at issue, the relevant language in the CBA’s is essentially
the same. The relevant provision at issue states that payments
are due to the Pension Fund for “all shifts worked by regulars
and regular extras, as well as vacation and holiday shifts.” The
meaning of the term “holiday shifts” is what is in dispute.
12

Plaintiffs contend “holiday shifts” not only includes the six
approved holidays but also paid personal holidays/personal days.
C-P contends “holiday shifts” only means the six paid holidays.
The general principles of construction that apply to the
parties’

dispute

including

those

are

relatively

establishing

ERISA

straightforward.
plans,

are

CBA’s,

interpreted

according to ordinary principles of contract law. M&G Polymers
USA, LLC v. Tachett,

U.S.

, 135 S.Ct. 926, 933 (2015). In

this regard the Court must determine and implement the intention
of the parties. Tessmar v. Grosner, 23 N.J. 193, 201 (1957). It
is the objective, not subjective, intent of the parties that the
Court must determine, as manifested in the language of their
CBA’s in light of the circumstances surrounding their execution.
Dome Petroleum Ltd. V. Employers Liability Ins. Co. of Wisc.,
767 F.2d 43, 47 (3d Cir. 1985).
The first step in the Court’s analysis is to determine if
the relevant CBA language is clear or ambiguous. Schor v. FMS
Financial Corp., 357 N.J. Super. 185, 191 (App. Div. 2002). An
ambiguity exists if the terms of a contract are susceptible to
at

least

two

reasonable

alternative

interpretations.

Id.

To

determine if an ambiguity exists the Court must examine the
CBA’s as a whole. The Court should not torture the language in
the CBA’s to create an ambiguity where one does not exist. Id.
Ultimately

the

Court’s

task

is
13

to

ascertain

the

parties’

intention from the language in their CBA taken in its entirety,
“the situation of the parties, the attendant circumstances, and
the objects the parties were [attempting] to attain.” Celanese
Ltd. v. Essex County Improvement Authority, 404 N.J. Super. 514,
528 (App. Div. 2009).

The Court finds that the term “holiday

shift” as used in Section XIV (J-1) is ambiguous. The term is
not

specifically

defined

in

the

CBA

and

plaintiffs

and

defendants offer reasonable alternative interpretations of the
term.
The Court now has to interpret the term “holiday shift.”
Other than citing to the language and structure of the CBA’s the
parties did not submit any persuasive extrinsic evidence as to
what was intended when the CBA’s referenced the term “holiday
shifts.” No testimony was presented from anyone who participated
in

negotiating

introduce

the

any

relevant

exhibits

language.
regarding

Nor

did

the

any

party

contemporaneous

negotiations for the CBA’s. Plaintiffs’ position was based on
what their auditor, peer reviewer and Administrator believed was
the

correct

involved

in

interpretation.
the

None

negotiations

for

of

these

J-1,

2

individuals
or

3.

In

were
fact,

plaintiffs are not even parties to the CBA’s. C-P’s position was
based

on

its

General

Manager’s

belief

as

to

the

correct

interpretation. He also did not negotiate J-1, 2 or 3. Albeit,

14

Hearon was involved in negotiations for later versions of the
CBA’s.
Based on the evidence in the record, the Court rules in CP’s favor. What is most compelling is the fact that the parties
separately

used

the

terms

“holidays”

and

“personal

holidays/personal days” in the CBA. This evidences the parties
knew the terms were different and were not interchangeable. The
Court finds that if the parties intended for the C-P to make
Pension
this

Fund

could

Instead,

payments
have

the

and

CBA

for

“personal

should

only

have

required

holidays/personal

been

specifically

Pension

Fund

days,”
stated.

payments

for

“holiday shifts.” The Court does not interpret the term “holiday
shifts”

as

used

in

the

CBA’s

to

include

“personal

holidays/personal days.” Instead, the term only referred to paid
holidays.
The Court will refer to J-1, the Drivers’ CBA, for its
illustrative analysis. Since J-5 made no change to the required
Pension

Fund

payments

set

forth

in

the

September

2,

2000

–

August 31, 2006 CBA (J-1), the provision in Section XIV (a) of
J-1

applied

through

March

11,

2011.9

This

provision,

which

dictated the Pension Fund payments that were due to the Drivers
from July 1, 2010 to March 11, 2011, reads as follows:

9

The parties agree that the interpretation the Court gives to
“holiday shifts” in J-1 also applies to J-2 and J-3.
15

a) In addition to the wages paid under Section IV, the
Courier-Post shall contribute monthly to the Teamsters
Pension Trust Fund of Philadelphia and Vicinity, the
sums set forth below for each shift worked covered by
this Agreement.
1.
As of September 1, 2000, the contribution by
the Courier-Post will be $38.60 per shift or
$193.00 per week.
* the above Pension payments will apply to all
shifts worked by regulars and regular extras, as
well as vacation and holiday shifts. (emphasis
added).
** The Employer shall not be required to make
Health
&
Welfare
contributions
or
Pension
contributions
for
those
employees
who
upon
retirement elect to receive their vacation and
holiday pay in a lump sum.
b)
In addition to the wages paid under Section IV,
the Courier-Post shall contribute monthly to the
Teamsters Health & Welfare Plan of Philadelphia and
Vicinity, the sums set forth below for each shift
worked covered by this Agreement.
When analyzing J-1 it is apparent that the parties used
different terms to refer to the different kinds of days covered
by the CBA. That is why in different portions of the CBA the
parties used the following terms:











vacation time
holidays
jury duty
funeral leave
personal days
personal holidays
vacation days
vacation shift
holiday shifts
shifts worked.
16

Given

the

fair

knowledgeable

inference

and

that

reasonably

the

parties

sophisticated

were

experienced,

negotiators,

the

Court assumes the parties knew what they intended. By using the
term “holiday shifts” the parties only intended to refer to the
six holidays named in Section VI (p. 18) of J-1. Just like
Section XIV made it clear that Pension Fund payments would be
made for paid vacation days the workers did not work, Section
XIV also made it clear that Pension Fund payments would be made
for paid holidays the workers did not work. If, as plaintiffs
contend, the parties intended for Pension Fund payments to also
be paid for personal holidays/personal days, the CBA would have
read

that

Pension

Fund

payments

would

“apply

to

all

shifts

worked …, as well as vacation, holiday shifts, and personal days
[or personal holidays].” As Hearon noted, there is a difference
between a paid shift, a benefit shift and a credit shift. Tr.
285:14-24. Given the experience and likely sophistication of the
personnel who negotiated the parties’ CBA’s, the Court finds
that if the parties intended for personal holidays/personal days
to be considered benefit days for the purpose of Pension Fund
payments, this would have been explicitly stated. This was not
done.
not

The Court finds this was not done because the parties did

intend

for

Pension

Fund

payments

personal holidays/personal days.

17

to

be

made

for

paid

The

parties

shifts”

or

clearly

“holidays,”

holidays.”

This

“holidays”

and

separately

is

used

distinguished
and

“personal

evidenced

“personal
in

the

the

by

days”
CBA.

the

or

terms
or

“personal

days”
fact

that

“personal

Indeed,

“holiday

the

terms

holidays”

there

is

a

were

separate

denomination of “Personal Holidays” in the Holiday portion (J-1,
Section

VI,

parties

intended

personal

pp.

18-19)
for

holidays

of

the

Pension

or

CBA.

Fund

personal

This

shows

payments

days,

this

to

that

would

the

paid

be

if

for

have

been

specifically stated. The parties’ use of these specific terms in
the CBA provides support for the holding that if the parties
intended

the

term

“holiday

shift”

to

also

include

“personal

holidays” or “personal days,” this would have been specifically
stated.
When

interpreting

Section

XIV

in

the

context

of

the

language of the entire CBA there is nothing to indicate the
parties intended the term “holiday shifts” in Section XIV to
include personal holidays/personal days. A general principle of
contract

interpretation

is

that

“identical

words

used

in

different parts of the same [contract] are intended to have the
same meaning.” Celanese Ltd., 404 N.J. Super. at 528 (citation
omitted).
in

The Court does not interpret the term “holiday shift”

Section

because

XIV

when

to

include

the

CBA

personnel
intended
18

holidays/personnel
to

refer

to

days,

personal

holidays/personal

days

it

specifically

used

these

terms.

Instead, the term “holiday shifts” just referred to one of the
listed “holidays.”
Plaintiffs’

contrary

arguments

are

not

convincing.

Plaintiffs alluded to the fact that when they previously audited
C-P

the

same

delinquency

was

listed

and

C-P

acknowledged

plaintiffs were right. However, there is no credible evidence in
the

record

to

support

this

contention.

None

of

plaintiffs’

witnesses had personal knowledge about an earlier audit and no
exhibits

were

introduced

into

evidence

regarding

an

earlier

audit. In fact, the Court sustained C-P’s objection to portions
of

the

parties’

exhibits

and

testimony

that

made

fleeting

references to an earlier audit. Tr. 111:9-23. Quite simply, any
allusion to an earlier audit is a non-issue in the case.
Plaintiffs argue their interpretation is right because the
CBA’s

effective

on

March

12,

2011

specifically

excluded

“personal holidays.” See J-6, 7. This, plaintiffs argue, shows
that personal holidays were previously included within the term
“holiday

shifts.”

Plaintiffs

argue

there

was

no

reason

to

specifically exclude personal holidays starting March 12, 2011
unless personal holidays were included up to March 11, 2011. The
Court disagrees. The Court does not accept plaintiffs’ argument
because plaintiffs did not present any evidence from someone
involved in the negotiations for the March 12, 2011 to March 11,
19

2013 CBA’s, e.g, J-6 and 7. The Court would be speculating as to
C-P’s

intent

if

it

accepted

plaintiffs’

argument.

In

fact,

Hearon was involved in the negotiations for the new CBA in 2011
(Tr. 265:25 to 266:14) and he disputed plaintiffs’ contention.
Hearon testified it was always C-P’s position that no Pension
Fund payments were due for paid personal holidays/personal days.
Id.;

Tr.

270:13-18.

The

Court

does

not

accept

plaintiffs’

argument because it is just as likely C-P wanted to document its
consistent position as it is that C-P wanted to change what had
been in existence.
The Court is also not persuaded by plaintiffs’ argument
that

since

the

members’

“Personal

Holiday”

benefits

were

included in Section VI dealing with “Holiday Pay,” the parties
intended that “personal holidays” and “holidays” be treated the
same. If this were the case “holidays” and “personal days” would
not have been separately listed in Section V-Vacations (pp.1718). Contract provisions should be “read as a whole, without
artificial emphasis on one section, with a consequent disregard
for others.” Borough of Princeton v. Bd. of Chosen Freeholders
of Mercer, 333 N.J. Super. 310, 325 (App. Div. 2000), aff’d, 169
N.J. 135 (2001). Words and phrases should not be isolated but
instead should relate to the context and contractual scheme as a
whole and given the meaning that comports with their probable
intent

and

purpose.

Newark
20

Publishers’

Ass’n

v.

Newark

Typographical
Court,

of

Union,

course,

No.

103,

understands

22

N.J.

that

419,
a

426

(1956).

contract

should

The
be

interpreted in a common sense manner. Hardy ex rel. Dowdell v.
Abdul-Matin, 198 N.J. 95, 103 (2009). There is nothing illogical
about interpreting the CBA to provide that Pension Fund payments
need to be made for paid holidays but not for paid personal
holidays/personal days.10
4.

Damages

The Court now turns to damages.

To support their damage

claim plaintiffs rely on the audits prepared by Ed Stipa. See J9(A-F).
business

10

These

audits

records

were

hearsay

admitted

into

exception.

Fed.

evidence
R.

Evid.

under

the

803(6).11

To the extent plaintiffs argue the CBA’s should be interpreted
against C-P as the drafter of the CBA’s, the argument is
rejected. There is no evidence in the record regarding who
drafted J-1, 2, and 3. Instead, a fair inference is that the
parties
mutually
drafted
the
CBA’s
with
the
input
of
sophisticated legal and/or business personnel.
11 This is not surprising since records of this type ordinarily
qualify as business records.
See United States v. Blackwell,
954 F. Supp. 944, 976 (D.N.J. 1997)(admitting financial audit
where this type of record was created and maintained in the
ordinary course of the preparer’s business); United States v.
Sololow, 91 F. 3d 398, 402-403 (3d Cir. 1996)(compilation and
summary of over $7 million in unpaid insurance claims prepared
by a third-party administrator admitted as a business record
where the record was made and kept in the third-party
administrator’s regular course of business), cert. denied, 519
U.S. 1116 (199&); United States v. Frazier, 53 F.3d 1105, 1110
(10th Cir. 1995)(regulatory compliance audit prepared by an
independent contractor admissible under Rule 803(6) where this
type of audit “was made in the course of [the independent
contractor’s] regular business activity and … it was the regular
practice of
[the independent contractor] to create such a
report.
21

Further, not only were plaintiffs’ audits admitted into evidence
as

Joint

Exhibits,

but

plaintiffs’

witnesses

testified

extensively about how the audits were carefully prepared and
checked for accuracy. Tr. 79:3 to 84:7; 139:14 to 143:23.
C-P

argues

plaintiffs

did

not

satisfy

their

burden

of

proving damages. It argues that even though Stipa’s audits were
admitted into evidence, Stipa should have appeared at trial to
testify concerning how the audits were prepared.
disagrees.

The

admissibility

of

business
records

records
relieves

rule
the

The Court

permitting

offering

party

the
from

producing the witness who prepared the records. United States v.
Console, 13 F.3d 641, 656-57 (3d Cir. 1993). Further, by its
terms Rule 803(6) permits foundation evidence for the admission
of a business record to be provided by the custodian of the
records or other “qualified witness.” Since plaintiffs’ audits
are in evidence, C-P’s arguments are directed to the weight the
Court should give the audits rather than whether the audits are
competent evidence. U.S. v. Onyenso, C.A. No. 12-602 (CCC), 2013
WL 5322686, at *3 (D.N.J. 2013); Muller-Paisner v. TIAA, 528
Fed.

Appx.

admissible

37,
under

41

n.2

Rule

(2d

803(6)

Cir.

2013)

despite

the

(call

summaries

plaintiff’s

are

general

argument that the circumstances of preparation indicate a lack
of trustworthiness); United States v.Kaiser, 609 F.3d 556, 576
(2d Cir. 2010)(noting that once the requirements of a business
22

record

are

met,

questions

about

trustworthiness

go

to

the

weight, not the admissibility of the evidence).
The Court finds that plaintiffs’ audits are in order and
trustworthy and will defer to their accuracy. No evidence has
been presented to lead the Court to question the accuracy of
plaintiffs’ audits. C-P has not cited to any material mistakes
in the audits. Nor has C-P offered alternative calculations. It
is not insignificant that C-P had an adequate opportunity to
challenge plaintiffs’ audits and chose not to do so. The Court
will not discredit plaintiffs’ audits which have been admitted
into evidence, along with supporting testimony, in the absence
of

a

credible

reason

to

believe

they

are

inaccurate.

No

evidence has been introduced in this regard.
As
Pension

noted,
Fund

delinquency
entitled

plaintiffs’
and

of

to

interpretation

claim

$2,824.93

$30,041.14.

any

damages

issue.

C-P

to

C-P
the

C-P

if

they

argues

owes
H&W

argues
lose

$27,216.21
Fund

for

plaintiffs
the

plaintiffs

to
a

the

total

are

not

“holiday

shift”

did

submit

not

competent proof as to any other damages. The Court disagrees and
finds that Stipa’s audits (J-9(A-F)) satisfy plaintiffs’ burden
of proof. As discussed, Stipa did not have to testify at trial
for the Court to credit his conclusions and findings and to
award damages to plaintiffs.

23

Having decided that plaintiffs’ can recover damages, the
Court must determine how much to award. This is computed by
subtracting

the

disallowed

“holiday

shift”

claim

from

plaintiffs’ total damage claim. Based on the evidence at trial,
the Court computed the total amount of plaintiffs’ Pension Fund
“holiday shift” claim to be $23,149.42.12 Since plaintiffs’ total
damage claim is $30,041.14, plaintiffs’ total award excluding
the

“holiday

shift”

claim

is

$6,891.72

($30,041.14

-

$23,149.42). Of this amount $2,824.93 is for the medical bills
plaintiffs paid.
In sum, therefore, Judgment in the amount of $6,891.72 will
be

entered

damages,

in

plaintiffs’

interest,

favor,

attorney’s

plus

fees

appropriate

and

costs.13

liquidated
This

total

includes $2,824.93 in medical bills plaintiffs paid.
Conclusion
Accordingly, for all the foregoing reasons, the Court finds
that Judgment will be awarded in plaintiffs’ favor in the total
amount

12

of

$6,891.72,

plus

appropriate

liquidated

damages,

The Driver’s claim totals $16,892.82. (2010 (311 days x $44.69
= $13,898.59) plus 2011 (67 days x $44.69 = $2,994.23)). The
Circulation claim totals $5,720.32 (2010 (99 days x $44.69 =
$4,424.31) plus 2011 (29 days x $44.69 = $1,296.01). The SCM
claims totals $536.28 (2010 (6 days X 44.69) plus 2011 (6 days x
$44.69)).
13 See 29 U.S.C. § 1132(g)(2).
24

interest, attorney’s fees and costs.14 Plaintiffs shall submit a
timely form of Judgement in accordance with L. Civ. R. 58.1.
Plaintiffs’

attorney’s

fee

and

cost

claims

shall

be

submitted in accordance with the applicable Federal and Local
Rules of Civil Procedure.15

s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

DATED: December 30, 2015

14

The parties stipulated that only $4,066.79 is subject to
liquidated damages ($6,891.72 - $2,824.93 (medical bills)).
15 The parties are encouraged to meet and confer to see if they
can agree on the total sum due without further litigation.
25