Board of Trustees of the Plumbers, Pipe Fitters & Mechanical Equipment Service, Local Union No. 392 Pension Fund et al v. Humbert et al

Filing 61

ORDER denying 42 Motion for Summary Judgment; denying 44 Motion for Summary Judgment; granting 45 Motion for Summary Judgment; Humberts, Genesis Mechanical, Reece and Genesis Mechanical, Inc. submit a payroll compliance audit; comply with all obligations under the collective bargaining agreement; plaintiffs have leave to petition the Court for entry of judgment. Signed by Judge Michael R. Barrett on 2/23/16. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BOARD OF TRUSTEES OF THE
PLUMBERS, PIPEFITTERS &
MECHANICAL EQUIPMENT SERVICE,
LOCAL UNION NO. 392 PENSION FUND,
ET AL.,

CASE NO. 1:13-cv-4
Judge Michael R. Barrett

Plaintiffs,
v.
SUSAN L. HUMBERT D/B/A GENESIS
MECHANICAL, ET AL.,
Defendants.
OPINION AND ORDER
This matter is before the Court on the cross-motions for summary judgment of
Defendants Genesis Mechanical Services, Inc. and Steve Reece, Defendants Steven Humbert and
Susan Humbert, and Plaintiffs Board of Trustees of the Plumbers, Pipe Fitters & Mechanical
Equipment Service, Local Union No. 392 Pension Fund, et al. (“Trust Funds”). (Docs. 42, 44,
45). 1 The Trust Funds have filed a sealed response in opposition to the motions for summary
judgment of Defendants Genesis Mechanical, Inc. and Steve Reece and Defendants Steven
Humbert and Susan Humbert (Doc. 51), and the Defendants have filed their respective replies in
support of their motions (Doc. 54; Doc. 53). Defendants Genesis Mechanical, Inc. and Steve
Reece and Defendants Steven Humbert and Susan Humbert also have filed responses in
opposition to the Trust Funds’ motion for summary judgment (Docs. 47, 50), and the Trust
Funds have filed their reply in support of their motion (Doc. 52). The Trust Funds also were

1

The Trust Funds’ motion for summary judgment and the corresponding exhibits are sealed.

1

granted leave to file a sur-reply in opposition to the motion for summary judgment of Defendants
Steven Humbert and Susan Humbert. (Doc. 58).
I.

FACTUAL BACKGROUND
The Trust Funds operate various funds for Local Union No. 392, which serve the

Plumbers, Pipefitters & Mechanical Equipment Contractors.
In or around the summer of 2004, Steve Humbert began operating under the name
“Genesis Mechanical,” which was a pipefitting and welding business. (Doc. 41-3, PageId 403,
406). Genesis Mechanical had seven customers. (Doc. 46, PageId 1068). While its primary
business was with the Proctor & Gamble Company, it also included among its customers Food
Services, JM Smucker, Johnson Controls, Randy Weekley, Triversity Construction, and Genesis
Mechanical Services (“GMS”) 2. (Doc. 41-3, PageId 408; Doc. 46, PageId 1068).
The Trust Funds produced documentation showing a signature of the name Susan L.
Humbert on a signature page for a collective bargaining agreement with the Plumbers, Pipefitters
& Mechanical Equipment Service, Local Union No. 392 (“Union No. 392”), which signature
was dated October 1, 2004. (Doc. 46, PageId 710). 3 That signature page does not include an
actual signature from Union No. 392 or any of its representatives. (Id.). That signature page
2

As will be explained below, the entity known as Genesis Mechanical Services later incorporated. That entity is
Genesis Mechanical Services, Inc. The original entity will be referred to as GMS while the entity as later
incorporated will be referred to as Genesis Mechanical Services, Inc. in order to make the distinction clear.
3

In the reply in support of their motion for summary judgment, the Humberts attach writing samples of Susan
Humbert from the relevant time period as a means of showing that the signature at issue is not her signature. (Doc.
53-2). The issue of signature discrepancies was not raised by Defendants in their principal briefs but instead was
raised for the first time in the reply brief. It thus presents a new issue for the Court’s consideration to which the
opposing party generally has no right to respond or counter in a substantive fashion. Compounding the problem
associated with raising this new substantive issue in the reply brief is that it appears that this is the first time
Defendants have raised this particular issue in this litigation and the first time that these signature samples have been
provided to the Trust Funds. As a matter of litigation fairness and procedure, the Court therefore considers this issue
waived and will not consider the writing samples in ruling upon Defendants’ motions for summary judgment See
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008); Tonguette v. Sun Life & Health Ins. Co. (U.S.),
No. 2:12-cv-00006, 2013 U.S. Dist. LEXIS 60716, at *11-12 (S.D. Ohio Apr. 29, 2013). Additionally, the Court
need not consider these signature samples in deciding the Trust Funds’ motion for summary judgment as they were
neither referenced in nor included by Defendants in opposing the Trust Funds’ motion for summary judgment.

2

also indicates that the collective bargaining agreement was executed by the authorized
representatives of Union No. 392 and Mechanical Contractors Association of Cincinnati on June
1, 2000. (Id.). The collective bargaining agreement to which it corresponds is the June 1, 2003
through May 31, 2006 collective bargaining agreement (“2003 CBA”). (Id.; see also Doc. 51-2,
PageId 1250-1320). The 2003 CBA, and in particular, Article XVIII of the 2003 CBA entitled
“Mechanical Equipment Service Division Commercial Agreement between the Mechanical
Contractors Association of Cincinnati and the Plumbers, Pipefitters & Mechanical Equipment
Service Local Union No. 392, Effective June 1, 2000 – May 31, 2006” contains a signature page
that includes that June 1, 2000 effective date. (Doc. 51-2, PageId 1297). The Preamble to
Article XVIII provides:
This document is a collective bargaining agreement between the Union and the
Employer Association entered into for the purpose of establishing the wages,
benefits, terms and conditions of employment of the Employees of any
Employer represented by the Employer Association and/or any Employer who
signs this Agreement, and for the purpose of establishing procedures for
resolving disputes and adjusting grievances and promoting labor and peace
between Employers and Employees.
(Id., PageId 1298). Defendants deny that Susan Humbert had anything to do with Genesis
Mechanical or was authorized to sign any documents on behalf of Genesis Mechanical. (Doc.
41-3, PageId 419); (Doc. 53-2, PageId 1397). 4 W-2’s from 2009 show that Susan Humbert was
paid in some capacity by CBS for work performed on behalf of Genesis Mechanical or GMS.
(Doc. 46, PageId 1023). In addition, Union No. 392’s files contains a “Contractor Sign-Up
Sheet” for Genesis Mechanical, Inc., dated October 1, 2004, listing the “Owners Name” as

4

Although the Humberts attach to their reply brief an affidavit of Susan Humbert in which she avers that she was
involved in Genesis Mechanical for four weeks in 2009, that testimony contradicts her deposition testimony and is
insufficient to create a genuine issue of material fact on summary judgment. Penny v. UPS, 128 F.3d 408, 415 (6th
Cir.. 1997) (“[A] party cannot create a genuine issue of material fact by filing an affidavit, after a motion for
summary judgment has been made, that essentially contradicts his early deposition testimony.”); see also Magnum
Towing & Recovery v. City of Toledo, 287 F. App’x 442, 448 (6th Cir. 2008) (quoting Penny, 128 F.3d at 415).

3

“Susan L. Humbert” and the “Contact” as “Steve Humbert.” (Doc. 51-1, PageId 1246). When
Union No. 392 receives communication for an employer that it desires to become a signatory
contractor, it follows a standard protocol, which has been in place since 2000. (Doc. 51-1,
PageId 1242). The protocol includes delivering copies of the CBA to the employer requesting
that an officer execute the CBA with one executed copy being maintained by Union No. 392, and
requesting that the employer complete a Contractor Sign-Up Sheet that is submitted along with
the executed copy of the CBA. (Id.). Union No. 392’s file for Genesis Mechanical contained
both the executed page of the CBA and the Contractor Sign-Up Sheet, which contained identical
execution dates. (Id., PageId 1242-43, 1246; Doc. 46, PageId 710). In November 2004, Genesis
Mechanical submitted a fringe benefit contribution report to Union No. 392. (Doc. 46, PageId
712). The fringe benefit contribution report contains the following language: “The above named
contractor certifies that the report includes only employees covered under the terms of a
collective bargaining agreement with the United Association or a United Association Local
Union and does not include a sole proprietor nor partner of the contractor.” (Id.). In December
2004, Genesis Mechanical also submitted a fringe benefit contribution report bearing the same
language. (Id. at PageId 713).
Beginning in 2005, Steve Humbert hired CBS to manage the administrative aspects of
Genesis Mechanical’s operations, including but not limited to invoicing, accounts payable, and
payroll. (Doc. 41-3, PageId 404-06). The administrative aspects of Genesis Mechanical’s
operations were conducted in the offices of CBS, located at 5958 Harrison Avenue, Cincinnati,
Ohio 45248, until approximately December 2012. (Doc. 41-4, PageId 451; Doc. 43-1, PageId
404-05; Doc. 46, PageId 914). Genesis Mechanical used CBS’s address, as well as its phone
number and its fax number on its invoices. (Doc. 46, PageId 914). For business cards, Steve

4

Humbert utilized his cell phone number. (Doc. 41-3, PageId 407). Genesis Mechanical also
used the EIN of CBS for its W-2s. (Doc. 46, PageId 1008-56; see also Doc. 41-4, PageId 455).
At the direction of Steve Humbert, CBS prepared fringe benefit contribution reports that
were submitted to the Trust Funds along with the contributions on a monthly basis through 2010.
(Doc. 41-3, PageId 434).

Genesis Mechanical, however, continued contributions through

approximately July 2012. (Doc. 41-3, PageId 422; Doc. 46, PageId 712-878). Further, a check
dated June 1, 2007 to Union No. 392 from CBS on behalf of Genesis Mechanical is for the
amount of $5,000 and is labeled “Escrow Fund.” (Doc. 46, PageId 919-22). 5 This amount
corresponds with the amount of the $5,000 surety bond from any signatory employers for the
first three employees that is required by the terms of the 2003 CBA, as well as the terms of the
2006 CBA. (Doc. 46, PageId 686; Doc. 51-2, PageId 1274).
In June 2008, CBS contacted a Union No. 392 representative indicating that Genesis
Mechanical wanted to request that Reece go to work for it. (Doc. 51-1, PageId 1248). Around
that same time, Reece approached Steve Humbert to ask if he could use part of the Genesis
Mechanical name for the operation he intended to start. (Doc. 41-1, PageId 352; Doc. 41-3,
PageId 426). Humbert agreed and Reece began operating GMS. (Doc. 41-1, PageId 352; Doc.
41-3, PageId 426;). Reece’s business focused on commercial and residential heating and air
conditioning. (Doc. 41-1, PageId 355). Reece has over 100 customers, including Johnson
Controls, Food Services, and the Proctor and Gamble Company. (Doc. 41-1, PageId 362, 373;
Doc. 46, PageId 1070-77). 6 Reece averred that, at times, he would subcontract out work to
5

The notation on the check indicates it is for Genesis Mechanical, Inc. It is not clear, however, who made this
notation.
6

GMS’s customer list indicates that Johnson Controls was a customer and the Union Plaintiffs have produced
invoices from GMS to Johnson Controls; as such, Reece’s self-serving denial that GMS did any work on behalf of
Johnson Controls is given no weight as it is plainly contradicted by the documentary evidence. (Compare Doc. 411, PageId 362 and Doc. 46, PageId 963-64 with Doc. 46, PageId 1073).

5

Genesis Mechanical, but invoices demonstrated no designation of Genesis Mechanical/Steve
Humbert as a subcontractor, Reece did not disclose to customers that Humbert was a
subcontractor, and no subcontractor agreement exists. (Doc. 41-1, PageId 358, 371; Doc. 41-3,
PageId 431). Reece also utilized CBS to handle administrative and payroll functions. (Doc. 411, PageId 354). His invoices for GMS utilized CBS’s address. (Doc. 41-1, PageId 354; Doc. 46,
PageId 963). His invoices listed the phone number and the fax number for CBS as well. (Doc.
46, PageId 963). Similar to Genesis Mechanical, GMS also utilized the EIN of CBS for its W-2s.
(Doc. 46, PageId 1008-56; see also Doc. 41-4, PageId 455). There is no indication, however,
that Genesis Mechanical and GMS share tools or equipment, or that the individuals employed to
do the work performed by Reece ever perform work for Humbert, and visa versa. (See generally
Docs. 41-1, 41-4).
Reece never signed the collective bargaining agreement with Union No. 392. (Doc. 41-1,
PageId 368). 7 Reece, however, directed CBS to pay his employees at a higher wage rate than
what was required under the CBA. (Doc. 41-1, PageId 364). He further directed CBS to pay
contributions to the Trust Funds on behalf of his covered employees at rates prescribed by the
CBA. (Doc. 41-1, PageId 364). Union dues and vacation dues also were deducted from the
weekly paychecks of Reece’s employees. (Id.). Through CBS, Reece submitted monthly reports
to the Trust Funds and Union on behalf of those covered employees performing work under him.
(Doc. 41-1, PageId 364, 367; Doc. 46, PageId 764-876). Those employees were reported on the
same fringe benefit contribution reports as Steven Humbert’s employees. (See id.). All of the
payments to the Trust Funds on behalf of Genesis Mechanical and GMS were issued on the same
checks, with the payor being CBS. (Id.; Doc. 46, PageId 880). Nothing on the fringe benefit

7

The parties dispute whether Reece had a conversation with Tommy Baker of Union No. 392 regarding signing the
CBA on behalf of GMS. Compare (Doc. 41-1, PageId 368) with (Doc. 51-1, PageId 1242-430.

6

contribution reports or the checks distinguished Genesis Mechanical from GMS. (See Doc. 46,
PageId 764-876).
The Trust Funds’ payroll compliance auditor conducted an audit of the books and payroll
records for Genesis Mechanical in 2009. (Doc. 46, PageId 880, 969-97). The auditor avers that
Genesis Mechanical is the only entity ever known to the Trust Funds to be in business. (Doc. 46,
PageId 880). During the audit, the auditor reviewed payroll records maintained by CBS for all
individuals that previously had been reported to the Trust Funds, which included those
employees working with Humbert and those employees working with Reece. (Doc. 46, PageId
880, 969-97). At that time, no indication was made to the auditor that Genesis Mechanical and
GMS considered themselves to be separate entities. (Doc. 46, PageId 880).
The website created for GMS listed Reece and those employees who worked with him, as
well as Steven Humbert as “Pipe and Fabrication Coordinator,” Thomas Groppenbecker of CBS
as “Accounting,” and Michele Wubbering of CBS as “Accounts Receivable/Payable.” (Doc. 411, PageId 360; Doc. 46, PageId 1003). The email addresses listed for Reece, Philip Thyen, and
Douglas Biehl utilized the domain name genesismechanicalservices.com. (Doc. 46, PageId
1003). The email address listed for Humbert used the domain name fuse.net, and the email
addresses listed for Groppenbecker and Wubbering used the domain name solutions-cbs.com.
(Id.). Reece’s explanation for the use of the various names on the website is that he wanted to
give the appearance that GMS was a larger company than it actually was at the time.
In or about March 2010, Reece submitted to Union No. 392 an application for the
Equalization and Stabilization Program under the name Genesis Mechanical Services. (Doc. 411, PageId 367; Doc. 46, PageId 1079-87). Reece never received any money as a result of the
Equalization and Stabilization Program. (Doc. 41-1, PageId 367).

7

On or about December 13, 2010, Reece informed Union No. 392 that he was resigning
his employment as Local 392 Pipefitter MES, effective December 31, 2010. (Doc. 46, PageId
99). He did so on GMS letterhead. (Id.). By letter dated May 14, 2012, Biehl, Reece’s
employee and now a GMS owner, also resigned his membership with Union 392. (Doc. 46,
PageId 1000; see also Doc. 41-1, PageId 355-57). Thyen, another employee working with Reece
and now an owner, also resigned his union membership by letter dated May 17, 2012. (Doc. 46,
PageId 1001; see also Doc. 41-1, PageId 355-57).
On September 30, 2013, the Trust Funds filed their First Amended Complaint pursuant to
Section 502 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132, and
Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, alleging that
Reece and GMS are alter-egos of Susan Humbert and Steven Humbert/Genesis Mechanical and
are jointly and severally liable for breaches of the collective bargaining agreements. (Doc. 27).
II.

SUMMARY JUDGMENT 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). A dispute is “genuine” when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
fact is “material” only if its resolution affects the outcome of the suit. Id.
On summary judgment, a court must view the evidence and draw all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The moving party has the burden
of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

8

Once the moving party has met its burden of production, the nonmoving party must
present significant probative evidence in support of his position to defeat the motion for
summary judgment. Anderson, 477 U.S. at 249. “The mere existence of a scintilla of evidence
in support of the [nonmoving party's] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [nonmoving party].” Id. at 252. Entry of summary
judgment is appropriate “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322.
III.

ANALYSIS
The issues presented to the Court by the cross-motions for summary judgment are: (A)

whether Reece/GMS/Genesis Mechnical, Inc. are independently bound by and in breach of the
CBA as a result of their conduct; and (B) whether Reece/GMS/Genesis Mechanical, Inc. are
bound by the CBA because they are the alter ego of the Humberts/Genesis Mechanical who are
bound by the CBA. Although the Court concludes that the evidence conclusively shows that
Reece/Genesis Mechanical, Inc. are not, standing alone, bound by the CBA, it nevertheless
grants summary judgment in favor of the Trust Funds upon a finding that the Humberts/Genesis
Mechanical are bound by the CBA and Reece/Genesis Mechanical, Inc. are likewise bound by
the CBA as the alter ego of the Humberts/Genesis Mechanical. 8
A. Whether Reece/GMS/Genesis Mechanical, Inc. are Independently Bound by the
CBA

8

For the Trust Funds to prevail on summary judgment, they had to show either that (1) Reece/GMS/Genesis
Mechanical, Inc. is bound as the alter ego of the Humberts/Genesis Mechanical who also are bound to the CBA or
(2) Reece/GMS/Genesis Mechanical, Inc. independently are bound to the CBA. On the other hand, Defendants
could prevail on summary judgment only upon showing both that (1) Reece/GMS/Genesis Mechanical, Inc. are not
bound as the alter ego of the Humberts/Genesis Mechanical and (2) Reece/GMS/Genesis Mechanical, Inc.
independently are not bound to the CBA. Because the Trust Funds met their summary judgment of showing that
Reece/GMS/Genesis Mechanical, Inc. is bound as the alter ego of the Humberts/Genesis Mechanical who also are
bound to the CBA, summary judgment in favor of the Trust Funds is appropriate.

9

It is undisputed that neither Reece nor anyone else signed the CBA on behalf of GMS or
Genesis Mechanical, Inc. The Trust Funds contend, however, that the conduct of Reece/GMS
alone is sufficient.

Defendants dispute that contention.

Having reviewed the evidence as

required under Rule 56 in favor of the Trust Funds and in favor of Defendants, the Court
concludes that there are no genuine issues of material fact and that Defendants have shown by
undisputed evidence that Reece/Genesis Mechanical, Inc. are not independently bound by the
CBA.
Section 302(a) of the LMRA, 29 U.S.C. § 186(a), restricts the circumstances under which
an employer may contribute monies to employee groups. The statutory prohibition exists to
prevent misappropriation or dissipation of money that is owed to union employees. Cent. States,
Se. & Sw. Areas Pension Fund v. Behnke, Inc., 883 F.2d 454, 459 (6th Cir. 1989). To protect
fringe benefits, however, an exception exists in Section 302(c)(5)(B) of the LMRA that
authorizes employers to make contributions to trust funds established by employee
representatives “for the sole and exclusive benefit of the employees” if “the detailed basis on
which such payments are to be made is specified in a written agreement with the employer[.]”
29 U.S.C. § 186(c)(5)(B) (emphasis added). See also Bd. of Trs. of the Plumbers, Pipe Fitters &
Mechanical Equip. Serv., Local Union No. 392 Pension Fund v. B&B Mechanical Servs., No.
13-4017, 2015 U.S. App. LEXIS 22759, at *11 (6th Cir. Dec. 29, 2015).
That written agreement may be the collective bargaining agreement or some other
document indicating that the employer is bound. B&B Mechanical, 2015 U.S. App. LEXIS
22759, at *11. There is no statutory requirement that the employer must sign the written
agreement to be bound by it. B&B Mechanical, 2015 U.S. App. LEXIS 22759, at *12 (citing
Nat’l Leadburners Health & Welfare Fund v. O.G. Kelley & Co., 129 F.3d 372, 375 (6th Cir.

10

1997)). The Sixth Circuit indeed has recently held that the employers’ association of which the
employer is a member may bind an employer to a collective bargaining agreement requiring
employer contributions to the trust funds without the employer signing the collective bargaining
agreement individually and without the employer giving the association express written authority
to act on its behalf. B&B Mechanical, 2015 U.S. App. LEXIS 22759, at *13-14.
Critically absent in this case is evidence that Union No. 392 had a written agreement with
Reece/GMS/Genesis Mechanical, Inc. as an individual employer. Again, it is undisputed that
neither Reece nor anyone else on behalf of GMS or Genesis Mechanical, Inc. signed the CBA at
any point in time. Further, there has been no evidence presented that Reece/GMS/Genesis
Mechanical, Inc. were members of the employers’ association so as to provide the employers’
association with authority to negotiate and enter the CBA on behalf of Reece/GMS/Genesis
Mechanical, Inc. Notably, Reece did not start GMS until 2008, which is after the employers’
association and Union No. 392 entered into the 2006 CBA. Further, the 2006 CBA that would
have been in effect at that time contains an express signature requirement for those employers
not represented by the association:
This document is a collective bargaining agreement between the Union and
Employer Association entered into for the purpose of establishing the wages,
benefits, terms and conditions of employment of the employees of any
employer represented by the Employer Association and/ or any employer who
signs this agreement . . . .
In the event that a contractor not now a member of a party of the first part, is
accepted for membership by said party pursuant to its rules and regulations,
this contract shall be made available for adoption to such contractor, who shall
evidence his intentions in this regard by executing a copy of this agreement
with the Union.
(Doc. 46, PageId 675) (emphasis added). “When interpreting ERISA plan provisions, general
principles of contract law dictate that we interpret the provisions according to their plain
meaning in an ordinary and popular sense. In applying the ‘plain meaning’ analysis, we must
11

give effect to the unambiguous terms of an ERISA plan.” Williams v. Int’l Paper Co., 227 F.3d
706, 711 (6th Cir. 2000) (internal citations and quotation marks omitted). Thus, in the absence
of evidence that Reece or GMS was represented by the employers’ association at the time of
execution of the 2006 CBA or at any other time, or otherwise expressly assented to the CBA, the
Court cannot conclude that Reece/GMS/Genesis Mechanical, Inc. agreed to be bound by the
CBA in this respect. See Merrimen v. Paul F. Rost Electric, Inc., 861 F.2d 135, 138-39 (6th Cir.
1988); see also B&B Mechanical, 2015 U.S. App. LEXIS 22759, at *14-15.
Although the Trust Funds contend that the conduct of Reece/GMS alone is sufficient
under the Sixth Circuit’s decision in Michigan Bricklayers & Allied Craftsmen Health Care
Fund v. Northwestern Construction, No. 95-2379 & 96-1346, 1997 U.S. App. LEXIS 15440, at
*2-3 (6th Cir. June 23, 1997), the Court disagrees. In Michigan Bricklayers, the Sixth Circuit
did not hold that conduct alone, in the absence of a binding written agreement, can bind an
employer to a CBA. Instead, it concluded that the employer, who had assented to be bound by
the original CBA, continued to be bound by the CBA during the period between the expiration of
the original CBA and the signing of the new CBA as a result of its conduct evidencing its intent
to continue to be bound. That conduct included continuing to prepare benefit fund contribution
reports and make the corresponding payments, continuing to make payroll deductions for union
dues under the terms of the expired CBA, and increasing the amount of payroll deductions in
accordance with the terms of the new CBA before it was signed. Id. The distinction between
that case and the present case is that the employer in that case actually had entered into the
original CBA prior to its expiration whereas in the present case there is no evidence that
Reece/GMS ever entered into a written agreement, expired or otherwise, that bound it to the

12

CBA with the Union. See id. 9 Cf. B&B Mechanical, 2015 U.S. App. LEXIS 22759, at *24-24
(citing to Michigan Bricklayers but declining to decide “whether an employer’s course of
conduct alone is sufficient to demonstrate that the employer is bound to a written agreement
requiring the payment of contributions”).
To the extent that the Trust Funds contend that Reece/GMS’s single application for and
written name on a single Memorandum of Understanding for wage subsidies under the Equality
and Stabilization Program on behalf of “Genesis Mechanical Services” constitutes a binding
written agreement sufficient to satisfy § 302(c)(5)(B) of the LMRA, the evidence to that extent is
likewise lacking. As an initial matter, the Trust Funds provide no argument as to why the
application or MOU should constitute a written agreement that would bind Reece/GMS/Genesis
Mechanical, Inc. to the CBA standing alone. Further, the application and MOU at issue here are
distinguishable from those at issue in B&B Mechanical, 2015 U.S. App. LEXIS 22759, at *2324. Although the MOU includes language that with the exception of the changes permitted by
the MOU, the 2006 CBA “shall remain in full force and effect in accordance with its terms, and
this Memorandum shall be concurrent with that Agreement, or until completion of this job,”
which mirrors that in the four MOUs in B&B Mechanical, there is no evidence in the present
case that Reece/GMS ever was a signatory to the CBA, that Reece/GMS ever was a member of
the employers’ association, that Reece/GMS separately signed a participation agreement, that
Reece/GMS ever actually accepted or received the wage subsidies pursuant to the MOU, or that
9

Similarly, Trustees of the Plumbers & Steamfitters Local Union No. 43 Health & Welfare Fund v. Crawford, No.
1:06-cv-245, 2007 U.S. Dist. LEXIS 92934, at *17-24 (E.D. Tenn. Dec. 18, 2007), is distinguishable from the
present case on the basis that the course of conduct which bound the employer was preceded by the signing of a
prior CBA. Board of Trustees of the Plumbers, Pipe Fitters & Mechanical Equipment Service, Local Union No.
392 Pension Fund v. B&B Mechanical Services, No. 13-4017, 2015 U.S. App. LEXIS 22759 (6th Cir. Dec. 29,
2015), is likewise distinguishable in that the employer in that case was bound by the collective bargaining agreement
because, unlike here, it undisputedly was a member of the employers’ association that negotiated the collective
bargaining agreement on the employers’ behalf, even though it never itself signed the collective bargaining
agreement and never expressly assented to the representation of the employers’ association.

13

Reece/GMS was ever required to contribute pursuant to the MOU or had any continuing
contribution obligation as a result of the MOU. Cf. B&B Mechanical, 2015 U.S. App. LEXIS
22759, at *23-24 (concluding that the employer’s four applications for and receipt of wage
subsidies, signed participation agreement acknowledging that the program was designed to help
union contractors compete with non-union contractors, and four MOUs providing that the CBA
shall otherwise remain in full force in effect with the wage-change exceptions showed that “[the
employer] acknowledged each time [it] accepted wage subsidies from the Union that [it] was
bound by the terms of the CBA to make contributions to the Funds”).
As for the submissions of contribution reports to the Trust Funds by Reece/GMS, which
listed the employees working with Reece/GMS and included certification language, they
likewise are insufficient to demonstrate that Reece/GMS independently had a binding obligation
pursuant to the CBA to contribute to the Trust Funds. Even assuming the contribution reports
were submitted on behalf of GMS as an individual employer, that issue of fact is immaterial
because the certification language in the contribution report is insufficient, standing alone, to
bind Reece/GMS to the CBA in the absence of some other binding written agreement setting
forth the detailed basis for such payments as required by § 302 of the LMRA. See Cent. States,
Southeast & Southwest Areas Pension Fund v. General Materials, Inc., 535 F.3d 506, 509-10
(6th Cir. 2008).

Unlike in B&B Mechanical, 2015 U.S. App. LEXIS 22759, at *23, the

contribution reports here are not coupled with any written agreement binding upon Reece/GMS
as an individual employer. Nor is there evidence similar to that in B&B Mechanical that
Reece/GMS certified in contribution reports sent to the National Pension Fund that it was “a
party to a written agreement requiring contributions.” B&B Mechanical, 2015 U.S. App. LEXIS
22759, at *22.

14

Accordingly, the Court concludes that Reece/GMS/Genesis Mechanical, Inc. are not
bound as an individual employer separate from the Humberts/Genesis Mechanical.
B. Whether Reece/GMS/Genesis Mechanical, Inc. are Bound by the CBA as Alter
Egos of the Humberts/Genesis Mechanical
The issue of whether Reece/GMS/Genesis Mechanical, Inc. are bound by and in breach
of the CBA as alter egos of the Humberts/Genesis Mechanical requires a two part inquiry. First,
the Court must determine whether the Humberts/Genesis Mechanical are bound by the CBA.
Second, if the Humberts/Genesis Mechanical are bound, then the Court must determine whether
Reece/GMS/Genesis Mechanical, Inc. are alter egos of the Humberts/Genesis Mechanical.
1. Whether the Humberts/Genesis Mechanical are Bound by the CBA
The Trust Funds contend that the Humberts/Genesis Mechanical are bound by the CBA
because Susan Humbert signed the 2003 CBA, which already had been executed by the Union,
and because the continued course of conduct of the Humberts/Genesis Mechanical demonstrated
an intent to be bound. Defendants, on the other hand, deny, through deposition testimony and
affidavits of the Humberts, that Susan Humbert signed the 2003 CBA and/or had the necessary
authority to sign the 2003 CBA. 10 They further contend that there are inconsistencies in the
signature page and the 2003 CBA and a lack of signature by the Union that preclude the
Humberts/Genesis Mechanical from being bound.
As explained supra, Section 302(a) of the LMRA, 29 U.S.C. § 186(a), restricts the
circumstances under which an employer may contribute monies to employee groups. To protect
fringe benefits, however, an exception exists in Section 302(c)(5)(B) of the LMRA that
authorizes employers to make contributions to trust funds established by employee
representatives “for the sole and exclusive benefit of the employees” if “the detailed basis on
10

As explained in a prior footnote, the writing samples of Susan Humbert attached to the reply brief shall not be
considered here.

15

which such payments are to be made is specified in a written agreement with the employer[.]”
29 U.S.C. § 186(c)(5)(B) (emphasis added). See also Bd. of Trs. of the Plumbers, Pipe Fitters &
Mechanical Equip. Serv., Local Union No. 392 Pension Fund v. B&B Mechanical Servs., No.
13-4017, 2015 U.S. App. LEXIS 22759, at *11 (6th Cir. Dec. 29, 2015).
That written agreement may be the collective bargaining agreement or some other
document indicating that the employer is bound. B&B Mechanical, 2015 U.S. App. LEXIS
22759, at *11. The employer does not, however, necessarily have to sign the written agreement
to be bound and the employers’ association may bind a member employer to a collective
bargaining agreement without the employer signing the collective bargaining agreement
individually and without the employer giving the employers’ association express written
authority to act on its behalf. Id. at *12-14.
Here, unlike in B&B Mechanical, there is no evidence presented as to whether Genesis
Mechanical is or has ever maintained membership in the employers’ association with which
Union No. 392 negotiated the collective bargaining agreements. As such, the Court declines to
decide that the Humberts/Genesis Mechanical are bound by the collective bargaining agreement
based on the actions of the employers’ association alone. Accordingly, the Court must proceed
to decide whether the signature page with the purported signature of Susan Humbert, combined
with the other evidence presented, binds Genesis Mechanical to the collective bargaining
agreement.
In the absence of membership in the employers’ association, the 2003 CBA requires a
signature of the employer.

(Doc. 51-2, PageId 1252-53). 11

Upon reviewing the evidence

presented as required by Rule 56 on the cross-motions for summary judgment, the Court finds

11

The 2003 CBA includes the same language as set forth previously with respect to the 2006 CBA.

16

that Defendants have presented no genuine issue of material fact and summary judgment in favor
of the Trust Funds is warranted. 12
First, Defendants’ reliance on inconsistencies between the 2003 CBA and the signature
page bearing the name Susan L. Humbert is unavailing. The 2003 CBA produced by the Trust
Funds (Doc. 51-2) undisputedly corroborates that the signature page is consistent with the
signature page of the 2003 CBA, despite any date discrepancies.
Second, the 2003 CBA reflects that Union No. 392 and the employers’ association “have
caused the same to be signed.” (Doc. 51-2, PageId 1318). The 2003 CBA does not require that
the Union’s signature be contemporaneous with the signature of the employer.
Third, there are no genuine issues of material fact that preclude summary judgment in
favor of the Trust Funds on the issue of whether Susan Humbert signed the 2003 CBA, binding
Genesis Mechanical. The Trust Funds have presented a signature page, which is consistent with
the signature page of the 2003 CBA, with the name Susan L. Humbert signed on it and which is
dated October 1, 2004. They also have presented a Contractor Sign-Up Sheet for “Genesis
Mechanical, Inc.” identifying Susan L. Humbert as the “Owner” and Steve Humbert as the
“Contact” at an address that is consistent with Genesis Mechanical’s subsequent contribution
reports. Like the signature page, the Contractor Sign-Up Sheet is dated October 1, 2004. The
Trust Funds also have presented evidence that these two documents were obtained from the file
for Genesis Mechanical and are consistent with the protocol of Union No. 392 for signing up
new contractors.

12

Further, the documentation plainly and undisputedly shows that Susan

Defendants have not presented sufficient evidence to warrant the grant of summary judgment in their favor.

17

Humbert received compensation through CBS in 2009, which contradicts Defendants’
contentions that Susan Humbert had absolutely no involvement in Genesis Mechanical. 13
Beyond that, the undisputed evidence shows that Genesis Mechanical acted thereafter as
a signatory contractor. In November 2004, approximately one month after the date on the
signature page and the Contractor Sign-Up Sheet, Genesis Mechanical began obtaining the
benefits of the CBA by submitting monthly contribution reports and payments to the Trust Funds
as required by the CBA. 14 Genesis Mechanical continued to submit those contribution reports
through June 2010 in compliance with the 2003 CBA and successor CBAs. Thereafter, in 2007,
Genesis Mechanical submitted a surety bond in the amount required by the CBA, and in 2009
and 2011, Genesis Mechanical also did not protest to payroll audits of it by the Trust Funds.
Further, consistent with Union policies for signatory contractors, Steve Humbert, as the owner of
Genesis Mechanical, exempted himself as the one owner of the signatory employer for whom the
employer did not have to contribute to the Trust Funds. Genesis Mechanical thus plainly
manifested its intent to be bound by the CBA. See B&B Mechanical, 2015 U.S. App. LEXIS
22759; Michigan Bricklayers & Allied Craftsmen Health Care Fund v. Northwestern Constr.,
No. 95-2379 & 96-1346, 1997 U.S. App. LEXIS 15440, at *2-3 (6th Cir. June 23, 1997);
Trustees of the Plumbers & Steamfitters Local Union No. 43 Health & Welfare Fund v.

13

As discussed in a prior footnote, the affidavit of Susan Humbert in which she avers that she was involved in
Genesis Mechanical for four weeks in 2009 may not be considered because that testimony contradicts her deposition
testimony and is insufficient to create a genuine issue of material fact on summary judgment. Penny v. UPS, 128
F.3d 408, 415 (6th Cir.. 1997) (“[A] party cannot create a genuine issue of material fact by filing an affidavit, after a
motion for summary judgment has been made, that essentially contradicts his early deposition testimony.”); see also
Magnum Towing & Recovery v. City of Toledo, 287 F. App’x 442, 448 (6th Cir. 2008) (quoting Penny, 128 F.3d at
415).

14

The parties do not dispute that Defendants would be bound by the successor CBAs upon signing the 2003 CBA.
Further, it is noted that the 2003 CBA contains a renewal clause. See Plumbers & Pipefitters Local Union No. 572
Health & Welfare Fund v. A & H Mech. Contrs., 100 F. App’x 396, 400-01 (6th Cir. 2004); Trs. of the B.A.C. Local
Ins. Fund v. Fantin Enters., 163 F.3d 965, 968-69 (6th Cir. 1998); Trs. of the Plumbers & Steamfitters Local Union
No. 43 Health & Welfare Fund v. Crawford, No. 1:06-cv-245, 2007 U.S. Dist. LEXIS 92934, at *18 (E.D. Tenn.
Dec. 18, 2007).

18

Crawford, No. 1:06-cv-245, 2007 U.S. Dist. LEXIS 92934, at *17-24 (E.D. Tenn. Dec. 18,
2007). 15
Defendants’ opposing evidence that Susan Humbert’s signature is not authentic or was
made without authority consists solely of the self-serving testimony of Susan Humbert and Steve
Humbert through depositions and affidavits, 16 which is insufficient, in the absence of any
corroborating evidence, to create a genuine issue of material fact on summary judgment. See
Operating Eng’rs Local 324 Health Care Plan v. Diversicon Excavating LLC, No. 12-11492,
2015 U.S. Dist. LEXIS 5374, at *10 (E.D. Mich. Jan. 16, 2015) (“self-serving affidavits of
companies’ owners is insufficient to create a genuine issue of material fact to survive summary
judgment”); see also Laborers’ Pension Fund v. RES Envtl. Servs., 377 F.3d 735, 739 (7th Cir.
2004) (holding that without specific information supporting generalized and conclusory
allegations in affidavit, the affidavit failed to create a genuine issue of material fact to preclude
summary judgment). 17 Further, a scintilla of evidence does not create a genuine issue of material
fact to preclude summary judgment.
15

Reece, in fact, testified as to Steve Humbert being a signatory contractor. (Doc. 41-1, PageId 368) (“Steve
Humbert from Genesis Mechanical, signatory.”).

16

As explained in a prior footnote, the writing samples of Susan Humbert attached to the reply brief shall not be
considered in ruling on summary judgment.
17

In a non-binding state case, U.S. Bank N.A. v. Bobo, 2014-Ohio-4975, ¶¶16-19 (Ohio Ct. App. Nov. 5, 2014), the
appellate court explained:
Mere speculation and unsupported conclusory assertions are not sufficient to meet the
nonmovants reciprocal burden under Civ. R. 56(E) to withstand summary judgment. A selfserving affidavit that is not corroborated by any evidence is insufficient to establish the
existence of an issue of material fact. To conclude otherwise would enable the nonmoving
party to avoid summary judgment in every case, crippling the use of Civ. R. 56 as a means to
facilitate the early assessment of the merits of claims, pre-trial dismissal of meritless claims
and defining and narrowing the issues for trial.
[Defendant] did not submit any corroborating summary judgment evidence to support her
claim the promissory note held by [Plaintiff] did not contain her authentic signature. Her
affidavit mentions that when she inspected what [Plaintiff] claimed were the original note and
mortgage during the litigation, she determined that her signature was different and that the
paper was different than the copy she received at closing. She did not attach to her affidavit
any of the copies she claimed to compare the alleged originals she inspected.

19

Accordingly, the Court concludes that the Trust Funds have shown no genuine issue of
material fact exists such that the Humberts/Genesis Mechanical are bound by the CBAs.
2. Whether Reece/GMS/Genesis Mechanical, Inc. are the Alter Ego of the
Humberts/Genesis Mechanical
The “alter ego” doctrine is an equitable one that has been applied when determining
“whether two or more coexisting employers performing the same work are in fact one business,
separated only in form.” NLRB v. Fullerton Transfer & Storage, Ltd., 910 F.2d 331, 336 (6th
Cir. 1990); see also Road Sprinkler Fitters Local Union No. 669 v. Dorn Sprinkler Co., 669 F.3d
790, 794 (6th Cir. 2012). “The doctrine operates to bind an employer to a collective bargaining
agreement if it is found to be an alter ego of a signatory employer.” Trs. of the Detroit
Carpenters Fringe Benefit Funds v. Indus. Contr., LLC, 581 F.3d 313, 318 (6th Cir. 2009). In
applying the doctrine, courts must consider “‘whether the two enterprises have substantially
identical management, business, purpose, operation, equipment, customers, supervision and
ownership.’” Fullerton, 910 F.2d at 336 (quoting Nelson Electric v. NLRB, 638 F.2d 965, 968
(6th Cir. 1981)). “In applying these factors, no individual factor is outcome determinative;
instead, ‘all the relevant factors must be considered together.’” Detroit Carpenters, 581 F.3d at
318 (quoting NLRB v. Allcoast Transfer, Inc., 780 F.2d 576, 582 (6th Cir. 1986)); see also Road

... .
[W]e conclude that in the absence of corroborating evidence, [Defendant’s] self-serving
affidavit challenging the authenticity of her signature held by [Plaintiff] did not raise a genuine
issue of material fact precluding summary judgment.
(internal quotations and citations omitted). Accord: Fifth Third Bank v. Jones-Williams, 2005-Ohio-4070, ¶28-29
(Ohio Ct. App. Aug. 9, 2005) (“In the [appellant’s] affidavit, [appellant] asserted that the promissory note and the
mortgage ‘do not bear the bone fide signatures of [appellants].’ Appellants did not present any additional evidence
other than this self-serving affidavit, in support of their argument that their signatures on the note and the mortgage
were forged. For example, appellants could have provided affidavits from non-expert witnesses who were familiar
with their handwriting or an expert who would attest to the authenticity of their signatures. . . . Based on the
foregoing, we find appellants have not satisfied their reciprocal burden as the nonmoving party to identify evidence
to demonstrate that any genuine issue of material fact regarding the validity of the appellants’ signatures must be
preserved for trial.”).

20

Sprinkler Fitters, 669 F.3d at 794 (“The [alter-ego] analysis is flexible and ‘no one element
should become a prerequisite to imposition of alter-ego status; rather, all the relevant factors
must be considered together.’”) (quoting Allcoast Transfer, 780 F.2d at 582). Under Sixth
Circuit precedents, the employer’s intent to evade the obligations of a collective bargaining
agreement may also be considered as a factor, but it is not a prerequisite to the imposition of
alter-ego status. Detroit Carpenters, 581 F.3d at 318 (citing Fullerton, 910 F.2d at 337).
Here, even when construed in the light most favorable to the Humberts and
Reece/Genesis Mechanical, Inc., the record is replete with evidence of substantial entanglement
between the Humberts/Genesis Mechanical and Reece/GMS from the outset. Although there
exists a factual dispute about whether Reece had a conversation with Baker in 2008 about
starting his own business and declining to partner with Humbert, that dispute is immaterial. The
undisputed evidence shows that Reece purposefully chose to use the entirety of the Genesis
Mechanical name when he began to operate as “Genesis Mechanical Services.” The undisputed
evidence also shows that in June 2008, CBS sent an email to the Union about Genesis
Mechanical wanting to hire Reece for work beginning in late June 2008. In July 2008, a fringe
benefit report was submitted on behalf of Genesis Mechanical which included the hours worked
by Reece, as well as the hours worked by other Genesis Mechanical employees.

Such

contribution reports on behalf of Genesis Mechanical continued to be submitted for Reece and/or
those employees working with Reece until approximately June 2012.
Further, like Genesis Mechanical, Reece was performing work covered by the CBA to
which Genesis Mechanical is a signatory. See Operating Eng’rs Local 324 Health Care Plan v.
Diversicon Excavating LLC, No. 12-11492, 2015 U.S. Dist. LEXIS 5374, at *11 (E.D. Mich.
Jan. 16, 2015) (finding common purpose where both businesses performed work covered by the

21

CBA); Trs. of the Tile, Marble & Terrazzo Ins. Trust Fund v. B&B Tile & Marble Co., No. 10cv-10106, 2011 U.S. Dist. LEXIS 18511, at *12 (E.D. Mich. Feb. 24, 2011) (“A court may find a
common business purpose exists when the work performed by both companies would be covered
work under the collective bargaining agreement.”) (citing Elec. Workers Pension Trust Fund of
Local Union #58 v. Sky Lite Elec., Inc., No. 09-10523, 2010 U.S. Dist. LEXIS 102756 (E.D.
Mich. Sept. 28, 2010)).
From the outset, the two businesses also shared an accounting agency, CBS. Initially,
Reece shared the same bank account with Genesis Mechanical. While separate books may have
been maintained for the two businesses, the money of both companies nonetheless resided in the
same account. Although Reece/GMS eventually obtained a separate bank account, the two
businesses remained substantially intertwined in multiple respects.
Reece performed work for three of Genesis Mechanical’s six customers at various times,
including Proctor & Gamble, Johnson Controls, and Food Services. While that work amounted
to a small percentage of Reece’s overall work, the customers nonetheless overlapped. See
Dobson Indus. v. Iron Workers Local Union No. 25, 237 F. App’x 39, 46-47 (6th Cir. 2007)
(alter-ego test satisfied where, among other things, the two entities had only six common
customers). In addition to those overlapping customers, Reece and Humbert worked on multiple
projects together. Although Reece and Humbert insist that those projects involved a contractorsubcontractor relationship, they did not disclose the contractor-subcontractor relationship to
clients, did not distinguish the subcontractor on invoices, and tellingly, did not have a
subcontractor agreement. Cement Masons’ Pension Trust Fund – Detroit & Vicinity v. F & G
Poured Walls, Inc., 797 F. Supp. 2d 845, 850 (E.D. Mich. 2011) (“The fact that no contracts or
agreements exist between the business[es] detailing subcontracting, rent, etc., is extremely telling

22

in determining alter ego status, as it appears that [one party] can simply assign whichever name
he wants to the job. Without any evidence of contracts or agreements between two businesses
which purport to have a contractor/subcontractor relationship, there is no real separation or
distinction between the two companies.”); see also Trs. of Detroit Carpenters Fringe Benefit
Funds v. Andrus Acoustical, Inc., No. 11-cv-14656, 2014 U.S. Dist. LEXIS 59810, at *40 (E.D.
Mich. Apr. 30, 2014) (relying on Cement Masons’ Pension Trust Fund, 797 F. Supp. 2d at 850).
Thus, the businesses of Humbert and Reece were virtually indistinguishable in this respect.
In addition to the above similarities between the businesses, the businesses utilized the
same address (CBS’s address), the same phone number (CBS’s phone number), and the same fax
number (CBS’s fax number), despite using separate cell phones for some customer
communications.

Similarly, the businesses both utilized the same EIN for tax purposes,

submitted contribution reports to the Trust Funds that included, without any distinction,
employees of Genesis Mechanical and employees working with Reece, and submitted payments
to the Trust Funds on the same check without any distinction between Genesis Mechanical and
Reece/GMS. Both Reece and Humbert blindly permitted that to happen through CBS. Had
GMS not done so, its contributions would have been illegal because, as explained previously,
there exists no written agreement between GMS/Reece and the Union that would permit such
contributions to be made. Bd. of Trustees of the Plumbers, Pipe Fitters & Mechanical Equip.
Serv., Local Union No. 392 Pension Fund v. B&B Mechanical Servs., No. 14-4017, 2015 U.S.
App. LEXIS 22759, at *24 (6th Cir. Dec. 29, 2015) (citing Merrimen v. Paul F. Rost Electric,
Inc., 861 F.2d 135, 137 (6th Cir. 1988)). As a result, there was no distinction between the
businesses with respect to the Trust Funds.

23

Further precluding a distinction between Genesis Mechanical and GMS is that GMS’s
website included Humbert with a title of “Pipe Fabrication Coordinator.” While the email
address of Humbert was different than that of Reece or others working with Reece, the website
suggests that the two companies are intertwined. Indeed, Reece admitted that the purpose of
including Humbert was to make GMS look like a larger company than it was – in other words, to
give the appearance that Humbert was employed by GMS even if the two businesses believe they
were operating separately. (Doc. 42-8, PageId 584). This single operation was further reflected
when the Union auditor went to audit Genesis Mechanical and no one ever distinguished
between the two businesses.
Thus, although Reece and Humbert did not necessarily perform the same day-to-day
work with the same employees, Reece/GMS acted as part and parcel of Genesis Mechanical and
obtained the benefits of a signatory contractor, without being subject to the full measure of
obligations under the CBA, until Reece decided to operate GMS independently as Genesis
Mechanical, Inc. When Genesis Mechanical, Inc. decided to stand on its own, it did so without
any significant change in purpose, business, employees, customers, operations, or otherwise.
Thus, while there are several characteristics of the work of Genesis Mechanical and Genesis
Mechanical, Inc. that are different, the consideration of all of the relevant factors of the flexible
alter-ego test together with the evidence in this case plainly demonstrates that
Reece/GMS/Genesis Mechanical, Inc. are the alter ego of the Humberts/Genesis Mechanical.
IV.

CONCLUSION
Given the above conclusions that the Humberts are bound by the CBA and

Reece/GMS/Genesis Mechanical, Inc. are the alter ego of Genesis Mechanical, the motions for
summary judgment of Defendants Genesis Mechanical, Inc. and Steve Reece and Defendants

24

Steven Humbert and Susan Humbert (Docs. 42 and 44) are DENIED, and the motion for
summary judgment of Plaintiffs Board of Trustees of the Plumbers, Pipe Fitters & Mechanical
Equipment Service, Local Union No. 392 Pension Fund, et al. (Doc. 45) is GRANTED. It is
hereby ORDERED that:
1. The Humberts, Genesis Mechanical, Reece, Genesis Mechanical, Inc. submit to a
payroll compliance audit for the period of January 1, 2010 through the present.
2. The Humberts, Genesis Mechanical, Reece and Genesis Mechanical, Inc. comply
with all obligations under the collective bargaining agreement, including but not
limited to the obligation to pay contributions to the Trust Funds on a monthly basis.
3. Plaintiffs shall have leave to petition the Court for entry of judgment in sum certain to
include all contributions revealed by the payroll compliance audit, including
liquidated damages resulting from the unpaid contributions and Plaintiffs’ attorney’s
fees and costs.
IT IS SO ORDERED.
s/Michael R. Barrett
JUDGE MICHAEL R. BARRETT
UNITED STATES DISTRICT COURT

25