Trustees of the Plumbers Local Union No. 1 Welfare Fund, Additional Security Benefit Fund, Vacation & Holiday Fund, Trade Education Fund, 401(K) Savings Plan et al v. Temperini Mechanical, Inc. et al

Filing 28

ORDER granting 16 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 6/13/2014. (Ewald, Sylvia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------x
TRUSTEES OF THE PLUMBERS LOCAL
UNION NO. 1 WELFARE FUND, ADDITIONAL
SECURITY BENEFIT FUND, VACATION AND
HOLIDAY FUND, TRADE EDUCATION FUND,
AND 401(K) SAVINGS PLAN, ET AL.,
Plaintiffs,

MEMORANDUM AND ORDER
12 Civ. 05646 (ILG) (SMG)

- against TEMPERINI MECHANICAL, INC., ET AL.,
Defendants.
------------------------------------------------------x
GLASSER, Senior United States District Judge:

The Trustees of the Plumbers Local Union No. 1 Welfare Fund, Additional
Security Benefit Fund, Vacation and Holiday Fund, Trade Education Fund, and 401(k)
Savings Plan (“Local Trustees”), and Trustees of the Plumbers and Pipefitters National
Pension Fund and Trustees of the International Training Fund (collectively “National
Trustees,” and together with the Local Trustees “Trustees”) sue Temperini Mechanical,
Inc. (“TMI”) and Joseph Temperini (“Temperini,” and together with TMI “Defendants”)
for violating the Employee Retirement Income Security Act, as amended, 29 U.S.C.
§ 1001 et seq. (“ERISA”), and the Labor Management Relations Act, 29 U.S.C. § 141 et
seq. (“LMRA”). Plaintiffs move for summary judgment. For the reasons that follow, the
motion is GRANTED with a lower damages award than the Trustees request.
BACKGROUND
Unless otherwise noted, the following facts are undisputed. 1 TMI, a plumbing
contractor operating in New York City, employs several members of Local Union
Defendants have not submitted a statement countering the Trustees’ Local Rule 56.1 statement, as
required by subpart b of the local rule. This Court accordingly deems the facts in the Trustees’ Local Rule

1

1

Number 1 of the United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry (“the Union”). Temperini is the President and CEO of TMI, and
has been a majority owner since at least November 2009. NYC Department of Buildings
Business Search (Dkt. No. 22-1); NYS Department of State Business Search (Dkt. No.
22-2). TMI and the Union are parties to a collective bargaining agreement (“CBA”),
which became effective on October 1, 2005, and remains in effect. CBA at 2 (Dkt. No. 181). Temperini signed the CBA as TMI’s President. CBA Signature Page (Dkt. No. 18-2).
The CBA requires TMI to, “[c]ommencing with the effective dates of this Agreement,”
contribute funds on its own behalf or remit funds withheld from its employees’ wages to
several employee-benefit and Union funds. CBA at 9–13.
To be precise, the CBA requires TMI to contribute to 11 different funds. Five of
the 11 funds are multiemployer employee-benefit funds administered at the local level
(“Local 1 Funds”): the Welfare Fund; the Vacation and Holiday Fund; the Trade
Education Fund; the Additional Security Benefit Fund; and the 401(k) Savings Plan.
CBA at 14–17. Two of the 11 funds are multiemployer employee-benefit funds
administered at the national level (“National Funds”): the National Pension Fund; and
the International Training Fund. Id. at 10, 12, 14, 16. And lastly, four of the 11 funds are
non-employee-benefit funds operated by the Union (“Union Funds”): the Political
Action Fund; the Organizing Fund; the Plumbing Industry Promotion Fund; 2 and the
fund for Union dues. Id. at 7, 11, 13, 22–23.

56.1 statement admitted to the extent that the record supports their statement. See Vt. Teddy Bear Co. v.
1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004).
2
At times, the Trustees seem to presume that the Plumbing Industry Promotion Fund, which was
established “for the mutual benefit of all plumbing contractors who do business in the area,” is an
employee-benefit fund. CBA at 21. It does not, however, qualify as such pursuant to ERISA. See 29 C.F.R.
2510.3-1(i); Trs. of the Plumbers Local Union No. 1 Welfare Fund v. Aljer Plumbing & Heating Corp., CV
09–1815, 2011 WL 1239878, at 2 n.2 (E.D.N.Y. March 16, 2011), report and recommendation adopted by
2

The CBA provides the specific amount due to each fund each month, as an hourly
rate or a percentage of an employee’s gross wages. CBA at 7, 10–16. It also provides for
an increase, to be allocated by the Union between wages and the benefit funds, every six
months between October 1, 2005, and September 30, 2009. Id. at 10, 12. The
contributions and remittances must be made by the 20th day of the month following the
month in which the obligations were incurred. Id. at 18. Untimely payments are subject
to 10% interest, 20% liquidated damages, costs, and attorney’s fees, as well as lost
earnings for employee contributions to the 401(k) Savings Plan. Id. at 15, 17, 19.
The Trustees have provided three types of evidence to prove the amount of
delinquent payments. First, for the period from January 1, 2005, to December 31, 2009,
the Trustees submit a declaration and audit prepared by a certified public accountant
(“CPA”). Del Orfano Decl. (Dkt. No. 21); Audit (Dkt. No. 21-1). The CPA concludes that
TMI failed to contribute $25,170.97 to the Local 1 Funds and $2,852.92 to the Union
Funds during this period. Del Orfano Decl. at ¶ 7. The CPA submitted the audit to TMI
in October 2011, and Temperini responded that he had reviewed the audit and agreed
with the CPA’s conclusions. 3 Temperini Ltr. (Dkt. No. 21-2).
Second, for the period from December 1, 2009, through March 31, 2011, Plaintiffs
submit 32 pages of TMI’s remittance reports, all of which Temperini signed, which
detail how much money TMI was required to pay into the various funds each month
based on its employees’ hours and wages that month. Remittance Reports (Dkt. No. 196). Using these reports, the administrators of these funds conclude that TMI owes
$98,316.39 in delinquent contributions to the Local 1 and Union Funds and $14,920.16
2011 WL 1187815 (March 30, 2011); Bricklayers & Allied Craftsmen, Local Union No. 3 v. Masonry & Tile
Contractors Ass'n, CV–LV–81–726, 1990 WL 270784, at *4–6 (D. Nev. 1990).
3 Curiously, Temperini’s letter responding to the audit is dated October 5, 2011, while the audit is dated
October 10, 2011.
3

in delinquent contributions to the National Funds for this period. Saraceni Decl. at ¶ 7
(Dkt. No. 19); Sweeney Decl. at ¶ 7 (Dkt. No. 20).
And third, for the period from March 1, 2012, through September 30, 2012, TMI
did not submit remittance reports and no audit has been done, so the Trustees estimate
the amount due to the funds based on prior remittance reports, in accordance with the
trust agreements governing the Local 1 and National Funds. 4 Welfare Fund Agreement
at 27–28 (Dkt. No. 19-1); Additional Security Benefit Fund Agreement at 31–32 (Dkt.
No. 19-2); Vacation and Holiday Fund Agreement at 27–28 (Dkt. No. 19-3); Trade
Education Fund Agreement at 28–29 (Dkt. No. 19-4); 401(k) Plan Agreement at 21 (Dkt.
No. 19-5); National Pension Fund Agreement at 26–27 (Dkt. No. 20-1); International
Training Fund Agreement at 28–29 (Dkt. No. 20-2). The administrators of the funds
estimate that TMI owes $39,414.48 in delinquent contributions to the Local 1 and Union
Funds and $6,389.67 in delinquent contributions to the National Funds for this period.
Saraceni Decl. at ¶ 10; Sweeney Decl. at ¶ 10.
The Trustees filed their complaint on November 16, 2012. (Dkt. No. 1).
Defendants filed an answer on January 4, 2013, and an amended answer on March 7,
2013. (Dkt. Nos. 7 & 9). The Trustees moved for summary judgment on January 27,
2014. (Dkt. No. 16). Defendants filed their opposition papers on March 19, 2014.
Response (Dkt. 26). The Trustees filed their reply papers on April 2, 2014. Reply (Dkt.
No. 27).

There is no agreement that prescribes the same method of estimation for the Union Funds, though the
Trustees assume the same method applies.

4

4

DISCUSSION
I. Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). “An issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. A fact is material if it
might affect the outcome of the suit under the governing law.” Fincher v. Depository
Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quotation omitted). The
moving party bears the burden of establishing the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court deciding a
motion for summary judgment must “construe the facts in the light most favorable to
the non-moving party and must resolve all ambiguities and draw all reasonable
inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)
(quotation omitted).
II. Analysis
The Trustees argue that uncontroverted evidence establishes that TMI was
contractually obligated to pay contributions to the Local 1, National, and Union Funds,
and failed to do so. Memorandum at 4 (Dkt. No. 23). They further contend that
Temperini is personally liable for the delinquency because he qualifies as a fiduciary
pursuant to ERISA. Id. at 6–9. And they argue the Local 1 and Union Funds are due a
combined $165,754.76 and the National Funds are due $21,309.83, plus 10% interest
per annum, and the greater of either 20% liquidated damages or another share of the
interest payment. Id. at 4–6. Plaintiffs do not ask for lost earnings for the untimely

5

401(k) remittances and say that they intend to seek attorney’s fees and costs at a later
date. Id. at 11.
A. Liability
1. TMI
The Trustees argue that the CBA requires TMI to pay contributions to the Local 1,
National, and Union Funds, that TMI is bound by the CBA, and that TMI failed to make
such payments. Memorandum at 3–4. Defendants do not make any meaningful
argument regarding the issue of TMI’s liability.
An employer is liable for delinquent contributions pursuant to ERISA if (1) the
relevant funds are multiemployer plans within the definition of ERISA, (2) the employer
is obligated to pay contributions under the terms of the plans, and (3) the employer
failed to pay contributions in accordance with the terms. Cement & Concrete Workers
Dist. Council Welfare Fund v. Atlas Concrete Const. Corp., No. 09-CV-4892, 2011 WL
2940181, at *1 n.1 (E.D.N.Y. July 19, 2011).
The Trustees have demonstrated that TMI is liable for delinquent contributions
to the Local 1 and National Funds. The uncontroverted evidence shows that the Local
and National Funds are multiemployer employee-benefit plans as defined in ERISA,
see 29 U.S.C. § 1002(3) & (37), that TMI is an employer that is obligated to pay
contributions to the benefit plans under the CBA and trust agreements, see id. at
§ 1002(5), and that TMI did not pay all of the required contributions.
The Trustees have not, however, demonstrated that TMI is liable for delinquent
contributions to the Union Funds. In their complaint, the Trustees seek delinquent

6

contributions only for the Local 1 and National Funds, 5 and a party may not raise new
claims in motion briefing papers. See Wright v. Ernst & Young, LLP, 152 F.3d 169, 178
(2d Cir. 1998); Enzo Biochem, Inc. v. Amersham, PLC, No. 02 CIV. 8448, 2013 WL
5943985, at *4 (S.D.N.Y. Oct. 22, 2013). The Union Funds are thus outside the scope of
this lawsuit and the Trustees are not entitled to a ruling regarding TMI’s liability for
payments to the Union Funds.
2. Temperini
The Trustees next argue that Temperini is personally liable for TMI’s delinquent
contributions because he meets ERISA’s definition of a fiduciary. Memorandum at 6–9.
They present evidence that he is the President and CEO of TMI; that he has been a
majority owner since November 2009; and that he signed the CBA, remittance reports,
and letter approving the audit on TMI’s behalf. CBA Signature Page; Temperini Ltr.;
NYC Department of Buildings Business Search; NYS Department of State Business
Search. Defendants respond that Temperini could be liable only if the Trustees meet the
requirements to pierce the corporate veil. Response at ¶ 5. They also contend that
Temperini should not be held personally liable because he was unable to make the
payments due to circumstances out of his control: TMI’s treasurer embezzled between
$120,000 and $150,000 from the company, and TMI has not been paid for about
$100,000 of work. Id. at ¶¶ 11, 14.

Their first claim alleges that TMI failed to pay contributions to the Local 1 Funds—which the Trustees
define in the Complaint as the Welfare Fund, Additional Security Benefit Fund, Vacation and Holiday
Fund, Trade Education Fund, and 401(k) Savings Plan—from November 2009 through September 2012
(Compl. at ¶¶ 4, 22); their second claim alleges that TMI failed to pay contributions to the 401(k) Savings
Plan from October 2010 through September 2012 (Id. at ¶ 26); their third claim alleges that TMI failed to
pay contributions to the National Pension Fund and International Training Fund from November 2009
through September 2012 (Id. at ¶ 30); their fourth claim alleges that TMI failed to pay contributions to
the Local 1 Funds during the audit period, from January 2005 through December 2009 (Id. at ¶ 34); and
their fifth claim alleges that Temperini is personally liable for the delinquent contributions (Id. at ¶ 50).
5

7

A person is a fiduciary pursuant to ERISA, and thus individually liable for a
corporation’s delinquent ERISA contributions, if 1) the plan agreement defines unpaid
contributions as plan assets and 2) the person possesses or exercises any discretionary
authority or control respecting management of those plan assets. 29 U.S.C.
§§ 1002(21)(A)(i), 1109(a); Finkel v. Romanowicz, 577 F.3d 79, 82 n.4, 85 (2d Cir.
2009); Rahm v. Halpin, 566 F.3d 286, 289 (2d Cir. 2009). “Congress intended the term
[fiduciary] to be broadly construed.” Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d
Cir. 1987). A person may be held liable as a fiduciary pursuant to ERISA even if the
conditions for piercing the corporate veil are not satisfied. Leddy v. Standard Drywall,
Inc., 875 F.2d 383, 388 (2d Cir. 1989).
The uncontroverted evidence shows that Temperini is personally liable for
delinquent contributions to the Local 1 and National Funds. First, the trust agreements
for the Local 1 and National Funds define unpaid contributions as plan assets. Welfare
Fund Agreement at 6; Additional Security Benefit Fund Agreement at 6; Vacation and
Holiday Fund Agreement at 6; Trade Education Fund Agreement at 6; 401(k) Plan
Agreement at 5; National Pension Fund Agreement at 7; International Training Fund
Agreement at 6. As mentioned above, the Union Funds are not within the scope of this
lawsuit, so this Court need not address whether delinquent payments to the Union
Funds are considered plan assets. Second, the Trustees have shown that Temperini
possesses discretionary authority over the unpaid contributions on account of his role as
president, CEO, owner, and the person who approved and signed documents related to
contributions to the funds. See, e.g., Trs. of the Conn. Pipe Trades Local 777 Health
Fund v. Nettleton Mech. Contrs., Inc., 478 F. Supp. 2d 279, 283 (D. Conn. 2007)
(concluding that a person who was president and 41% shareholder, signed the CBA, and
8

decided which bills to pay was a fiduciary); NYSA-ILA Med. & Clinical Servs. Fund v.
Catucci, 60 F. Supp. 2d 194, 202 (S.D.N.Y. 1999) (concluding that president and
controlling shareholder who ran the corporation and made payment decisions was a
fiduciary). And although the Court sympathizes with Temperini about his difficulty
making contributions given the circumstances his business faced, he has not cited and
the Court cannot find any legal authority for the proposition that these circumstances
somehow lessen his discretionary authority over the funds.
B. Damages
The Trustees request damages in the amount of $165,754.76 for delinquent
payments to the Local 1 and Union Funds and $21,309.83 for delinquent payments to
the National Funds for the period from January 1, 2005, to September 30, 2012.
Memorandum at 10. Defendants respond that TMI was not obligated to make the
entirety of these payments because TMI “only signed two agreements on or around the
year of 2004 and 2005 and did not sign the CBA in years 2006-2011.” Response at ¶ 7.
They also contend that “Plaintiffs did not furnish any documents to support their claim
that the amount owed is $95,000 which is merely speculative in nature. Plaintiff’s [sic]
speculate a number with no affidavit of an accountant or any individual or company that
did an audit to invoice that any money was owed.” Id. at ¶¶ 3–4. The Defendants do not
otherwise challenge the Trustees’ damages calculations.
The Defendants’ arguments are baseless. First, the CBA became effective on
October 1, 2005, and provides that it “shall continue in effect until and including
September 30, 2009, and during each year thereafter unless on or before the fifteenth
(15th) day of June, 2009 or on or before the fifteenth (15th) day of June of any year
thereafter, written notice of termination or proposed changes shall have been served by
9

either party on the other party.” CBA at 2, 4, 28; CBA Signature Page. Because the
Union never received a written notice of termination, the CBA remained in effect.
Doherty Decl. 6 at ¶ 7 (Dkt. No. 18). Second, nowhere do the Trustees request damages in
the amount of $95,000, and it is entirely unclear why Defendants refer to this amount.
Third, the Trustees have submitted a great deal of documentation to support their
request, including an audit prepared by a CPA.
The Court, however, has discovered several significant problems with the
Trustees’ calculations that require correction and ultimately a lower damages award
than the one the Trustees request.
1. October 1, 2005, to November 30, 2009
To establish damages for the period from October 1, 2005, to December 31, 2009,
the Trustees submit a declaration and audit report from Mark Del Orfano, a CPA. Del
Orfano declares that he used payroll records, tax returns, and other data to conclude
that TMI had failed to pay contributions for approximately 4,000 hours of work from
January 1, 2005, to December 31, 2009. Del Orfano Decl. at ¶¶ 4–5. He concludes that
TMI failed to pay $25,170.97 to the Local 1 Funds and $2,852.92 to the Union Funds. Id.
at ¶¶ 6–7. The audit attached to his declaration sets out the calculations on which Del
Orfano bases his conclusions.
There are several problems with these figures. First, the audit includes
delinquencies beginning on January 1, 2005, but the CBA did not become effective until
October 1, 2005. CBA at 2, 4, 28. Second, the Trustees have double-counted deficiencies
for the month of December 2009 by seeking damages based upon both the audit and
remittance reports for this month. Moreover, for December 2009, the audit provides for
The Court notes that the Doherty Declaration says that it is made “in support of Plaintiffs’ motion for
default judgment,” despite the fact that the Plaintiffs have moved for summary judgment.

6

10

a higher deficiency than the remittance reports for the Local 1 and Union Funds, and the
remittance reports include deficient payments to the National Funds while the audit
does not. 7 Third, the audit also includes delinquencies owed to the Union Funds, but as
discussed above, the Union Funds are not within the scope of this lawsuit. Fourth, the
audit includes two kinds of payments related to the Vacation and Holiday Fund:
contributions to the fund itself, as well as additional payments for Federal Insurance
Contributions Act (“FICA”) taxes on the contributions to the fund. But the CBA says
only that the fund is subject to FICA; it does not say that TMI must pay FICA taxes in
addition to its contributions to the Vacation and Holiday Fund. CBA at 14, 16.
Correcting for these problems, the Court has calculated that TMI owes the Local
Trustees $11,847.88 for the period from October 1, 2005, through November 30, 2009.
Month

Local 1
Funds
Deficiency

Nat'l
Funds
Deficiency

Total
Deficiency

October 2005
November 2005
December 2005
January 2006
February 2006
March 2006

$352.23
$246.93
$2,896.22
-$163.48
$608.56
-$551.60

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$352.23
$246.93
$2,896.22
-$163.48
$608.56
-$551.60

April 2006
May 2006
June 2006
July 2006
August 2006
September 2006

$0.00
$0.00
$1,147.18
$1,311.60
$1,005.21
-$185.60

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$0.00
$0.00
$1,147.18
$1,311.60
$1,005.21
-$185.60

October 2006
November 2006

$800.32
-$334.04

$0.00
$0.00

$800.32
-$334.04

The audit provides that 820 hours were worked and TMI failed to pay contributions of $7,960.40 to the
Local 1 and Union Funds in December 2009, while the remittance reports provide that 684 hours were
worked and TMI failed to pay contributions to the Local 1 and Union Funds of $6,850.22 in December
2009. The audit does not list deficient payments for the National Funds, whereas the remittance reports
provide that TMI failed to contribute $1,037.52 to the National Funds in December 2009. The Court uses
the deficiencies as recorded in the remittance reports, which provide more detail than the audit. The
deficiencies for December 2009 are thus included in the next table rather than this table.

7

11

December 2006
January 2007

$370.04
$4.56

$0.00
$0.00

$370.04
$4.56

February 2007
March 2007
April 2007
May 2007
June 2007
July 2007

$394.97
$350.88
$0.00
$0.00
$0.00
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$394.97
$350.88
$0.00
$0.00
$0.00
$0.00

August 2007
September 2007
October 2007
November 2007
December 2007
January 2008

$7.60
$6.08
$23.20
$64.96
$398.40
-$150.80

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$7.60
$6.08
$23.20
$64.96
$398.40
-$150.80

February 2008
March 2008
April 2008
May 2008
June 2008
July 2008

$110.96
-$4.48
$22.40
$38.50
$256.80
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$110.96
-$4.48
$22.40
$38.50
$256.80
$0.00

August 2008
September 2008
October 2008
November 2008
December 2008
January 2009

$26.88
$17.60
$0.00
$49.60
$25.60
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$26.88
$17.60
$0.00
$49.60
$25.60
$0.00

February 2009
March 2009
April 2009
May 2009
June 2009
July 2009

$412.20
$0.00
-$571.20
$844.80
-$844.80
$1,984.80

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$412.20
$0.00
-$571.20
$844.80
-$844.80
$1,984.80

August 2009
September 2009
October 2009
November 2009
Grand Total

-$301.20
-$148.80
$1,656.00
-$331.20
$11,847.88

$0.00
$0.00
$0.00
$0.00
$0.00

-$301.20
-$148.80
$1,656.00
-$331.20
$11,847.88

2. December 1, 2009, to March 31, 2011
To establish damages for the period from December 1, 2009, to March 31, 2011,
the Trustees submit monthly remittance reports prepared by Temperini, detailing the
12

number of hours worked, the employees’ gross wages, and the amount TMI was
required to pay to the various funds for that month. Based upon these reports, Walter
Saraceni, the administrator of the Local 1 Funds, concludes that TMI was required and
failed to contribute $98,316.39 to the Local 1 and Union Funds from December 2009
through March 2011. Saraceni Decl. at ¶ 7. William Sweeney, the administrator of the
National Funds, concludes that TMI was required and failed to contribute an additional
$14,920.16 to the National Funds from December 2009 through March 2011. Sweeney
Decl. at ¶ 7. Neither Saraceni nor Sweeney has provided the calculations underlying
their conclusions.
There are, again, several problems with the Trustees’ figures for this period. First,
as was the case with the audit calculations, Saraceni’s calculations include delinquent
contributions for “Union assessments,” but as discussed above, delinquent contributions
to the Union Funds are not within the scope of this lawsuit. Second, the remittance
reports reflect an increase in the rate of contribution to the National Pension Fund in
October 2010, from $2.41 to $2.91 per hour for Journeymen and from $1.15 to $1.40 per
hour for Helpers. But the CBA provides for increases only through September 2009; the
October 2010 increase is therefore unsupported by the CBA. CBA at 10, 12. Third, there
are miscalculations in the remittance reports—for the months of January 2010 and
December 2010—and it is not clear that Saraceni or Sweeny accounted for these errors,
all of which resulted in overpayment, in their calculations.

13

Correcting for these errors, 8 the Court has calculated that TMI owes the Local
Trustees $86,523.20 and the National Trustees $14,626.56 for the period from
December 1, 2009, to March 31, 2011.
Time Period

Local 1
Funds
Deficiency

Nat'l
Funds
Deficiency

Total
Deficiency

December 2009

$6,066.12

$1,037.52

$7,103.64

January 2010
February 2010
March 2010
April 2010

$6,923.20
$6,514.48
$7,177.60
$3,148.80

$1,161.60
$1,093.92
$1,210.56
$532.80

$8,084.80
$7,608.40
$8,388.16
$3,681.60

May 2010
June 2010
July 2010
August 2010
September 2010
October 2010

$6,735.52
$7,269.36
$6,643.76
$6,989.92
$6,105.76
$1,871.56

$1,132.80
$1,219.68
$1,123.68
$1,181.76
$1,026.24
$312.00

$7,868.32
$8,489.04
$7,767.44
$8,171.68
$7,132.00
$2,183.56

November 2010
December 2010
January 2011
February 2011
March 2011
Grand Total

$6,297.60
$4,935.90
$3,220.74
$3,374.00
$3,248.88
$86,523.20

$1,065.60
$835.56
$547.56
$582.24
$563.04
$14,626.56

$7,363.20
$5,771.46
$3,768.30
$3,956.24
$3,811.92
$101,149.76

3. March 1, 2012, to September 30, 2012
To establish damages during this period, during which TMI did not submit
remittance reports, the Trustees estimate the amount due to the funds based on prior
remittance reports. Saraceni Decl. at ¶¶ 6–10; Sweeney Decl. at 6–10. The trust
agreements for the Local 1 and National Funds direct that estimates be based on the
greater of the average monthly contribution for either the most recent twelve months’

8 Three payments to Union Funds are listed independently on the remittance reports and are therefore
easily excised from the calculations. But payments to the Plumbing Industry Promotion Fund appear to be
included in a joint contribution rate that also includes payments to the Local 1 Funds. The Court excises
the payments to the Plumbing Industry Promotion Fund by subtracting the amount due to Plumbing
Industry Promotion Fund—$0.25 per hour worked (CBA at 11, 13, 21)—from the joint contribution rate.

14

reports or most recent three months’ reports. Welfare Fund Agreement at 27–28;
Additional Security Benefit Fund Agreement at 31–32; Vacation and Holiday Fund
Agreement at 27–28; Trade Education Fund Agreement at 28–29; 401(k) Plan
Agreement at 21; National Pension Fund Agreement at 26–27; International Training
Fund Agreement at 28–29.
According to Saraceni and Sweeney, the most recent twelve months’ reports
covered the period from April 2010 through March 2011. Saraceni Decl. at ¶ 9; Sweeney
Decl. at ¶ 9. (Saraceni and Sweeney don’t mention the most recent three months’
reports, apparently having concluded that the most recent twelve months’ reports result
in a higher monthly average.) Saraceni concludes that the average monthly contribution
owed to the Local 1 and Union Funds from April 2010 through March 2011 was
$5,360.64, resulting in an estimated delinquency of $39,414.48 for the seven-month
period of March 2012 through September 2012. Saraceni Decl. at ¶¶ 9–10. Sweeney
concludes that the average monthly contribution owed to the National Funds from April
2010 through March 2011 was $912.81, making for an estimated delinquency of
$6,389.67 for the seven-month period of March 2012 through September 2012. Sweeney
Decl. at ¶¶ 9–10.
These estimated delinquencies derive from Saraceni’s and Sweeney’s calculations
for the period from April 2010 to March 2011. The estimates therefore suffer from the
same problems as the calculations for the period from April 2010 to March 2011—
namely, they include funds not within the scope of the lawsuit, include increases not
provided for by the CBA, and may be based on incorrect remittance reports.
Using the corrected calculations for the period from April 2010 to March 2011,
the Court has calculated that the average payment to the Local 1 Funds was $4,986.82
15

per month and that the average payment to the National Funds was $843.58 per month.
Multiplying these averages by seven results in delinquent payments to the Local
Trustees in the amount of $34,907.74 and delinquent payments to the National Trustees
in the amount of $5,905.06, for the period from March 1, 2012, to September 30, 2012.
Local 1
Funds
Deficiency

Nat'l Funds
Deficiency

Total
Deficiency

April 2010
May 2010
June 2010
July 2010

$3,148.80
$6,735.52
$7,269.36
$6,643.76

$532.80
$1,132.80
$1,219.68
$1,123.68

$3,681.60
$7,868.32
$8,489.04
$7,767.44

August 2010
September 2010
October 2010
November 2010
December 2010
January 2011

$6,989.92
$6,105.76
$1,871.56
$6,297.60
$4,935.90
$3,220.74

$1,181.76
$1,026.24
$312.00
$1,065.60
$835.56
$547.56

$8,171.68
$7,132.00
$2,183.56
$7,363.20
$5,771.46
$3,768.30

February 2011
March 2011
Grand Total
Monthly Average

$3,374.00
$3,248.88
$59,841.80
$4,986.82

$582.24
$563.04
$10,122.96
$843.58

$3,956.24
$3,811.92
$69,964.76
$5,830.40

Time Period

C. Interest
The Trustees request 10% interest per annum on all of the delinquent payments.
Memorandum at 10. The Defendants do not object.
ERISA entitles the Trustees to recover interest on unpaid contributions as
provided for in the documents governing the employee-benefit plan. 29 U.S.C.
§ 1132(g)(2); Finkel v. Triple A Grp., Inc., 708 F. Supp. 2d 277, 286–87 (E.D.N.Y. 2009).
The CBA provides for interest at the rate of 10% per annum for delinquent
contributions to the funds. 9 This amounts to a daily interest rate of 0.0274%. The Court
The Court notes that some of the trust agreements governing the individual funds provide for the
imposition, in the Trustees’ discretion, of interest at rates between 12 and 18 percent. Welfare Fund

9

16

calculates that TMI owes the Local 1 Funds $48,280.57 in interest and owes the
National Funds $6,745.57 in interest.

Time Period
October 2005

Local 1
Funds
Deficiency

Nat'l Funds
Deficiency

Due
Date

Today's
Date

Days
Since
Due
Date

Local 1
Interest
Due

Nat'l
Interest
Due

Total
Interest
Due

$352.23

$0.00

11/20/06

6/13/14

2762

$266.56

$0.00

$266.56

November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006

$246.93
$2,896.22
-$163.48
$608.56
-$551.60
$0.00
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

12/20/06
1/20/06
2/20/06
3/20/06
4/20/06
5/20/06
6/20/06

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

2732
3066
3035
3007
2976
2946
2915

$184.84
$2,433.07
-$135.95
$501.40
-$449.79
$0.00
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$184.84
$2,433.07
-$135.95
$501.40
-$449.79
$0.00
$0.00

June 2006
July 2006
August 2006
September 2006
October 2006
November 2006

$1,147.18
$1,311.60
$1,005.21
-$185.60
$800.32
-$334.04

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

7/20/06
8/20/06
9/20/06
10/20/06
11/20/06
12/20/06

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

2885
2854
2823
2793
2762
2732

$906.83
$1,025.67
$777.53
-$142.04
$605.67
-$250.05

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$906.83
$1,025.67
$777.53
-$142.04
$605.67
-$250.05

December 2006
January 2007
February 2007
March 2007
April 2007
May 2007

$370.04
$4.56
$394.97
$350.88
$0.00
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

1/20/07
2/20/07
3/20/07
4/20/07
5/20/07
6/20/07

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

2701
2670
2642
2611
2581
2550

$273.86
$3.34
$285.92
$251.02
$0.00
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$273.86
$3.34
$285.92
$251.02
$0.00
$0.00

June 2007
July 2007
August 2007
September 2007
October 2007
November 2007

$0.00
$0.00
$7.60
$6.08
$23.20
$64.96

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

7/20/07
8/20/07
9/20/07
10/20/07
11/20/07
12/20/07

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

2520
2489
2458
2428
2397
2367

$0.00
$0.00
$5.12
$4.04
$15.24
$42.13

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$0.00
$0.00
$5.12
$4.04
$15.24
$42.13

December 2007
January 2008
February 2008
March 2008
April 2008
May 2008

$398.40
-$150.80
$110.96
-$4.48
$22.40
$38.50

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

1/20/08
2/20/08
3/20/08
4/20/08
5/20/08
6/20/08

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

2336
2305
2276
2245
2215
2184

$255.00
-$95.24
$69.20
-$2.76
$13.59
$23.04

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$255.00
-$95.24
$69.20
-$2.76
$13.59
$23.04

Agreement at 26; Additional Security Benefit Fund Agreement at 29–30; Vacation and Holiday Fund
Agreement at 26; Trade Education Fund Agreement at 27; 401(k) Plan Agreement at 20. The Court
interprets the Trustees’ position that interest should be calculated at the lower rate of 10 percent as an
exercise of their discretion.
17

June 2008
July 2008

$256.80
$0.00

$0.00
$0.00

7/20/08
8/20/08

6/13/14
6/13/14

2154
2123

$151.56
$0.00

$0.00
$0.00

$151.56
$0.00

August 2008
September 2008
October 2008
November 2008
December 2008
January 2009

$26.88
$17.60
$0.00
$49.60
$25.60
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

9/20/08
10/20/08
11/20/08
12/20/08
1/20/09
2/20/09

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

2092
2062
2031
2001
1970
1939

$15.41
$9.94
$0.00
$27.19
$13.82
$0.00

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$15.41
$9.94
$0.00
$27.19
$13.82
$0.00

February 2009
March 2009
April 2009
May 2009
June 2009
July 2009

$412.20
$0.00
-$571.20
$844.80
-$844.80
$1,984.80

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

3/20/09
4/20/09
5/20/09
6/20/09
7/20/09
8/20/09

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

1911
1880
1850
1819
1789
1758

$215.83
$0.00
-$289.54
$421.05
-$414.11
$956.06

$0.00
$0.00
$0.00
$0.00
$0.00
$0.00

$215.83
$0.00
-$289.54
$421.05
-$414.11
$956.06

August 2009
September 2009
October 2009
November 2009
December 2009
January 2010

-$301.20
-$148.80
$1,656.00
-$331.20
$6,066.12
$6,923.20

$0.00
$0.00
$0.00
$0.00
$1,037.52
$1,161.60

9/20/09
10/20/09
11/20/09
12/20/09
1/20/10
2/20/10

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

1727
1697
1666
1636
1605
1574

-$142.53
-$69.19
$755.94
-$148.47
$2,667.70
$2,985.81

$0.00
$0.00
$0.00
$0.00
$456.27
$500.97

-$142.53
-$69.19
$755.94
-$148.47
$3,123.97
$3,486.78

February 2010
March 2010
April 2010
May 2010
June 2010
July 2010

$6,514.48
$7,177.60
$3,148.80
$6,735.52
$7,269.36
$6,643.76

$1,093.92
$1,210.56
$532.80
$1,132.80
$1,219.68
$1,123.68

3/20/10
4/20/10
5/20/10
6/20/10
7/20/10
8/20/10

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

1546
1515
1485
1454
1424
1393

$2,759.56
$2,979.49
$1,281.22
$2,683.40
$2,836.33
$2,535.80

$463.39
$502.52
$216.79
$451.30
$475.89
$428.89

$3,222.95
$3,482.01
$1,498.01
$3,134.71
$3,312.22
$2,964.69

August 2010
September 2010
October 2010
November 2010
December 2010
January 2011

$6,989.92
$6,105.76
$1,871.56
$6,297.60
$4,935.90
$3,220.74

$1,181.76
$1,026.24
$312.00
$1,065.60
$835.56
$547.56

9/20/10
10/20/10
11/20/10
12/20/10
1/20/11
2/20/11

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

1362
1332
1301
1271
1240
1209

$2,608.55
$2,228.41
$667.16
$2,193.16
$1,677.02
$1,066.92

$441.02
$374.54
$111.22
$371.10
$283.89
$181.39

$3,049.57
$2,602.95
$778.38
$2,564.26
$1,960.91
$1,248.31

February 2011
March 2011
March 2012
April 2012
May 2012
June 2012

$3,374.00
$3,248.88
$4,986.82
$4,986.82
$4,986.82
$4,986.82

$582.24
$563.04
$843.58
$843.58
$843.58
$843.58

3/20/11
4/20/11
4/20/12
5/20/12
6/20/12
7/20/12

6/13/14
6/13/14
6/13/14
6/13/14
6/13/14
6/13/14

1181
1150
784
754
723
693

$1,091.81
$1,023.72
$1,071.25
$1,030.26
$987.90
$946.91

$188.41
$177.41
$181.21
$174.28
$167.11
$160.18

$1,280.22
$1,201.14
$1,252.46
$1,204.54
$1,155.01
$1,107.09

$4,986.82
$4,986.82
$4,986.82
$133,278.80

$843.58
$843.58
$843.58
$20,531.62

8/20/12
9/20/12
10/20/12

6/13/14
6/13/14
6/13/14

662
631
601

$904.55
$862.19
$821.20
$48,280.57

$153.02
$145.85
$138.92
$6,745.57

$1,057.56
$1,008.04
$960.11
$55,026.14

July 2012
August 2012
September 2012
Grand Total

18

D. Statutory Damages
The Trustees are also entitled to the greater of either 20% liquidated damages or
an additional share of the interest award. 29 U.S.C. § 1132(g)(2)(C). Here, the interest
award is larger than 20% of damages, so the Trustees will receive statutory damages in
the amount of $48,280.57 for the Local 1 Funds and $6,745.57 for the National Funds.
CONCLUSION
For the foregoing reasons, the Local Trustees are entitled to judgment against the
Defendants, jointly and severally, in the amount of $229,839.96, and the National
Trustees are entitled to judgment against the Defendants, jointly and severally, in the
amount of $34,022.76. The Trustees are to appropriately apportion the damages
between the Funds. See Trs. of the Plumbers Local Union, No. 1 Welfare Fund v. M.B.
Mech. Corp., No. 12 Civ. 4798, 2013 WL 173391, at *2 n.1 (E.D.N.Y. Jan. 15, 2013)
(“[S]ince a fund-by-fund breakdown has not been demonstrated or requested, and there
is no inequity in requiring defendants to pay the total amount due to all Funds, the
Court is going to assume that there is some sharing agreement between plaintiffs.”).
SO ORDERED.
Dated:

Brooklyn, New York
June 13, 2014
/s/
I. Leo Glasser
Senior United States District Judge

19