Orrand et al v. Hunt Construction Group, Inc.

Filing 20

OPINION AND ORDER - Accordingly, the defendants motion Doc. 14 is granted inpart and denied in part, in that the motion to dismiss is denied, and the motion to stay all further proceedings in this case pending a decision by the Board is granted. Counsel shall immediately notify the court when the Board renders its decision. Signed by Judge James L Graham on 9/26/13. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Raymond Orrand, Administrator,
et al.,
Plaintiffs,
v.

Case No. 2:13-cv-481

Hunt Construction Group, Inc.,
Defendant.
OPINION AND ORDER
This is an action brought pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001, et seq. by
Raymond Orrand, Administrator of the Ohio Operating Engineers
Health and Welfare Plan, Pension Fund, Apprenticeship Fund, and
Education and Safety Fund, and the trustees of those funds against
defendant Hunt Construction Group.

Plaintiffs allege that the

defendant, an employer, and the Ohio Operating Engineers, a labor
union, are parties to a collective bargaining agreement which
requires defendant to make contributions to the funds on behalf of
certain employees, and that defendant has failed to make those
contributions.

Plaintiffs

seek

the

payment

of

contributions

allegedly owed the funds under ERISA §515, 29 U.S.C. §1145, access
to defendant’s records for the purpose of conducting an audit,
statutory interest, costs and attorney’s fees, and injunctive
relief.
This matter is before the court on defendant’s motion to
dismiss without prejudice.

Defendant contends that the instant

case is related to a dispute between Local 18 of the International
Union

of

Operating

Engineers

(“Operating

Engineers”)

and

the

Laborers’ International Union of North America (“Laborers’ Union”)
over which union’s members should be assigned work operating
forklifts

and

skids.

Defendant

and

other

employers

in

the

Cleveland, Ohio, area filed unfair labor practice charges with the
National Labor Relations Board (“the Board”).

Defendant states

that the NLRB has now held two hearings under §10(k) of the
National Labor Relations Act, 29 U.S.C. §160(k), to determine
whether the work in question should be awarded to the members of
the Operating Engineers or to members of the Laborers’ Union.
Defendant indicates that a decision from the Board could come at
any time.
Defendant argues that plaintiffs are using the instant ERISA
action, with its associated costs and risks, as a means of applying
additional pressure against defendant in its efforts to expand the
types of work within the jurisdiction of the Operating Engineers.
Defendant correctly notes that it is the Board’s responsibility and
duty to decide in the §10(k) proceeding which of the two employee
groups claiming the right to perform certain work tasks is correct
and then specifically to award such tasks in accordance with it s
decision.

See

National

Labor

Relations

Board

v.

Radio

and

Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 586
(1961).

Defendant

urges

this

court

to

apply

the

primary

jurisdiction doctrine1 and to dismiss this action without prejudice
while the Board resolves the §10(k) matters.

1

In the alternative,

doctrine of primary jurisdiction arises when a claim is
properly cognizable in court but contains some issue within the
special competence of an administrative agency. United States v.
Haun, 124 F.3d 745, 749 (6th Cir. 1997). When the doctrine is
applicable, court proceedings are stayed so as to give the parties
reasonable opportunity to refer the matter to an agency by seeking
an administrative ruling. Id.
The

defendant asks this court to stay further proceedings in this case
until the Board renders its decision.

See Ryan v. Gonzales, 133

S.Ct. 696, 708 (2013)(district courts ordinarily have authority to
issue stays where such a stay would be a proper exercise of
discretion); Enelow v. New York Life Ins. Co., 293 U.S. 379, 382
(1935)(explaining that a district court may stay a case “ending
before it by virtue of its inherent power to control the progress
of a cause so as to maintain the orderly processes of justice”).
The court concludes that the dismissal of the instant case
without prejudice would not be appropriate.

Defendant indicates

that a decision could come from the Board at any time.
the court will issue the stay requested by defendant.

However,
The court

recognizes that the §10(k) proceedings before the Board are between
the unions and the employers under the National Labor Relations
Act, whereas plaintiffs’ ERISA claims can only be advanced in this
court by the administrator and trustees of the funds.
U.S.C. §1132(e)(1).

See 29

Nonetheless, the outcome of the proceedings

before the Board may be relevant to this court’s analysis of
defendant’s contractual liability under the relevant collective
bargaining agreement.
The court finds the Sixth Circuit’s decision in Trustees of
the B.A.C. Local 32 Ins. Fund v. Ohio Ceiling & Partition Co., 48
Fed.Appx. 188 (6th Cir. 2002), to be instructive.

In that case,

the Sixth Circuit considered claims for contributions under §1145
brought by the trustees of various union funds, where the unions
were engaged in a similar dispute about work jurisdiction.

The

court stated that “the heart of the issue” was “that the work was
performed under a CBA with another union claiming jurisdiction over
the work and under which contributions were made to the associated
employee benefit funds.”

Id. at 196.

The court reiterated that

the real question is whether plaintiffs could demonstrate
a contractual obligation to make contributions to the
bricklayers funds when the carpenters union agreements
purported to cover the same work, the work was assigned
to employees covered by the carpenters union agreements
and contributions were made in full to the carpenters
union funds.
Id.

at

197-198.

The

court

noted

that

the

Sixth

Circuit

had

previously rejected a claim for damages for breach of contract by
one union when the Board resolved the jurisdictional dispute in
favor of another union.

Id. at 197 (citing Int’l Union, United

Auto., Aerospace and Agric. Implement Workers (UAW) and its Local
1519 v. Rockwell Int’l Corp., 619 F.2d 580, 584-85 (6th Cir.
1980)).
The Sixth Circuit also stated that it was “sympathetic to the
district

court’s

concern

about

the

use

of

ERISA

to

press

a

jurisdictional dispute of the assignment of” work. Id. at 197-98.
The court observed, “Looking at the basis for the protections
afforded to ERISA plans under [§1145], nothing suggests that it was
intended to afford ERISA fiduciaries a weapon against employers in
undeclared jurisdictional disputes with competing unions.”
198.

Id. at

The court also noted that the issue of which union had a

superior right to the work had not been determined in that case,
id. at 197, and that “plaintiffs should not be able to establish an
entitlement to contributions for work assigned to another union
claiming jurisdiction over the work without invoking procedures for
resolving the jurisdictional work assignment issue.”

Id. at 198

(citing Carpenters Fringe Benefit Funds v. McKenzie Eng’g., 217
F.3d 578 (8th Cir. 2000)).

The court held that plaintiffs failed

to demonstrate that the defendant had a contractual obligation to
pay contributions for the hours of work performed by the carpenters
union employees.

Id.

This holding suggests that the Board’s

decision in the jurisdictional dispute in this case not only
relevant

to,

but

also

a

necessary

predicate

to

recovery

on

plaintiffs’ ERISA claims.
In any event, it makes sense from the standpoint of fairness
and judicial economy to stay this action pending the Board’s
decision.

The Board’s determination may impact the parties’

position in this case and their decision whether to proceed further
with this litigation.

Adhering to a typical schedule would result

in an expenditure of time, money and judicial resources which may
prove to be unnecessary if the parties later resolve the matter
based on the Board’s decision.
possible

eventual

recovery

of

Although a stay may delay any
contributions

by

the

Operating

Engineers’ funds, the defendant has already made contributions to
the Laborers’ Union funds for the work performed by Laborers’ Union
members, to the benefit of the workers who actually performed the
work.
Accordingly, the defendant’s motion (Doc. 14) is granted in
part and denied in part, in that the motion to dismiss is denied,
and the motion to stay all further proceedings in this case pending
a decision by the Board is granted.

Counsel shall immediately

notify the court when the Board renders its decision.

Date: September 26, 2013

s/James L. Graham
James L. Graham
United States District Judge