Orrand et al v. B & B Wrecking & Excavating, Inc.
OPINION AND ORDER granting 15 Motion to Consolidate Cases; granting 17 Motion to Intervene; granting 17 Motion to Stay. Signed by Judge James L Graham on 8/8/2014. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Raymond Orrand, et al.,
Case No. 2:13-cv-481
Hunt Construction Group, Inc.,
Raymond Orrand, et al.,
Case No. 2:13-cv-489
Raymond Orrand, et al.,
Case No. 2:13-cv-556
Raymond Orrand, et al.,
Case No. 2:13-cv-556
B&B Wrecking & Excavating,
Raymond Orrand, et al.,
Case No. 13-cv-900
OPINION AND ORDER
The above actions have been 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 defendants Hunt Construction Group, Donley’s Inc.,
Cleveland Concrete Construction, Inc., B&B Wrecking & Excavating,
Inc., and Precision Environmental Company.
Plaintiffs allege that
the defendant employers and the Ohio Operating Engineers, a labor
require the defendants to make contributions to the funds on behalf
of certain employees, and that defendants have failed to make those
allegedly owed the funds under ERISA §515, 29 U.S.C. §1145, access
to defendants’ records for the purpose of conducting an audit,
statutory interest, costs and attorney’s fees, and injunctive
On September 26, 2013, this court granted the motion of
defendant Hunt Construction to stay proceedings in Case No. 2:13cv-481.
See Doc. 20.
The purpose of the stay was to await the
decision of the National Labor Relations Board (“NLRB”) regarding
charges of unfair labor practices filed by the defendant employers
against Local 18 of the International Union of Operating Engineers
(“Operating Engineers”) and the Laborers’ International Union of
North America (“Laborers’ Union”). The proceedings before the NLRB
under §10(k) of the National Labor Relations Act (“NLRA”), 29
U.S.C. §160(k), involved a dispute between the two unions as to
which union’s members should be assigned work operating forklifts
and skids in the Cleveland, Ohio, area.
On December 16, 2013, the
other four cases noted above were also stayed on motion of the
On May 22, 2014, Hunt Construction filed a notice stating that
the NLRB had rendered a decision in the administrative proceedings.
On June 13, 2014, this court held a status conference in Hunt
Counsel informed the court that the Operating
Engineers had filed a request for reconsideration of the NLRB’s
decision, and that a ruling on that request was expected in
This court indicated that it would continue the stay
currently in place.
The judges assigned to these five cases then
revisited the issue of whether they are related.
By means of a
related case memorandum order filed on June 18, 2014, Case Nos.
2:13-cv-900, 2:13-cv-489, and 2:13-cv-556, originally assigned to
other judges, were transferred to the docket of the undersigned
judge as related cases.
This matter is now before the court on the defendants’ motion
to consolidate the above cases, and on the NLRB’s motion to
intervene and to stay filed in Case Nos. 2:13-cv-900, 2:13-cv-489,
2:13-cv-864 and 2:13-cv-556.
I. Motion to Consolidate
The defendant employers have moved for consolidation pursuant
to Fed. R. Civ. P. 42(a).
Rule 42(a) provides: “If actions before
the court involve a common question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the
actions; (2) consolidate the actions; or (3) issue any other orders
to avoid unnecessary cost or delay.”
“affords the district court discretion concerning the purposes and
scope of consolidation.”
1180 (6th Cir. 1992).
Advey v. Celotex Corp., 962 F.2d 1177,
“The underlying objective is to administer
the court’s business ‘with expedition and economy while providing
justice to the parties.’”
Id. (quoting 9 Wright & Miller, Federal
Practice and Procedure, §2381 (1971)).
Consolidation is permitted
as a matter of convenience and economy in administration, but it
does not merge the suits into a single cause, change the rights of
the parties, or make those who are parties in one suit parties in
Lewis v. ACB Business Services, Inc., 135 F.3d 389, 412
(6th Cir. 1998).
“It is not a prerequisite to consolidation that there be a
complete identity of legal and factual issues posed in the cases
which are the subject of the request.”
Safety Today, Inc. v. Roy,
Nos. 2:12-cv-510, 2:12-cv-929 (unreported), 2013 WL 1282384 at *1
(S.D.Ohio March 27, 2013).
As long as there are some common
questions of either law or fact, the court has the flexibility
under Rule 42(a) to allow cases to proceed jointly with respect to
such matters in which joint proceedings would not be unduly
prejudicial and would be an effective utilization of judicial
Id. (citing Brewer v. Republic Steel Corp., 64 F.R.D.
591, 594 (N.D.Ohio 1974).
Rule 42(a) does not require that cases
contemplates consolidation for purposes of particular segments of
the litigation. Magnavox Co. v. APF Electronics, Inc., 496 F.Supp.
29, 32 (N.D.Ill. 1980).
In deciding whether cases should be consolidated, this court
whether the specific risks of prejudice and possible
confusion [are] overborne by the risk of inconsistent
adjudications of common factual and legal issues, the
burden on parties, witnesses and available judicial
resources posed by multiple lawsuits, the length of time
required to conclude multiple suits as against a single
one, and the relative expense to all concerned of the
single-trial, multiple-trial alternatives.
Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th
Cir. 1985), quoted in Cantrell v. GAF Corp., 999 F.2d 1007, 1011
(6th Cir. 1993).
There are common legal issues and common and similar factual
contributions allegedly due under the terms of the same or similar
collective bargaining agreements between the Operating Engineers
and the defendant employers.
As a defense, the defendants rely on
the decision of the NLRB rendered on May 15, 2014, holding that the
members of Laborers International were entitled to perform the work
for which plaintiffs now seek contributions on behalf of the
Operating Engineers’ funds.
See Doc. 28-1, p. 7.
intend to argue that the court should only look to the collective
contributions under ERISA.
Thus, a critical legal issue common to
all five cases is what effect, if any, the NLRB decision will have
on plaintiffs’ ERISA claims.
One consolidation factor, the risks (or, as plaintiffs argue,
the benefits) of inconsistent adjudications, is now moot in light
of the transfer to the undersigned judge of the three cases
previously assigned to other judges.
The other factors, including
the burden on the parties and witnesses and on judicial resources
posed by the separate litigation of identical legal and factual
questions in multiple cases, weigh in favor of consolidation.
parties concerned will benefit from the stream-lined proceedings
made possible by the consolidation of these five cases.
No specific risks of prejudice or possible confusion posed by
consolidation have been identified in these cases.
memorandum order, that the legal issues in this case should be
decided by the different judges to which the cases were originally
assigned, plaintiffs have cited no authority for the proposition
that they are entitled to more than one judicial opinion on the
legal issues posed by their cases.
Plaintiffs also argue that
these cases are at different stages of development.
were all filed within a few months of each other.
The oldest case,
Hunt Construction, was filed on May 20, 2013, and the most recent
case, Precision Environmental, was filed on September 13, 2013.
Proceedings in Hunt Construction were stayed on September 26, 2013,
and the other four cases were stayed on December 16, 2013.
in the way of pretrial conferences or discovery has occurred in any
of these cases.
The minor differences in the state of the
proceedings in these cases are not sufficient to outweigh the
benefits of consolidating future proceedings.
If this court rules
in plaintiffs’ favor on the issue of liability, then factual issues
concerning work performed for each employer may come to the
However, nothing in the record to date suggests that
such issues would be hotly contested, or that litigation of these
issues would generate confusion sufficient to outweigh the benefits
Even if that does occur, this court can re-
Defendants’ motion for consolidation is granted.
II. Motion to Intervene
The NLRB has filed a motion to intervene and to stay in the
four cases filed after Hunt Construction (proceedings in that case
had already been stayed when the NLRB filed its motion).
defendants in those cases do not oppose the motion, but plaintiffs
have filed a memorandum in opposition. Because the cases have been
stayed pending the results of the proceedings before the NLRB, the
NLRB’s request to intervene for the purpose of seeking a stay is
However, the NLRB argues that it is also entitled to
intervene in this case to protect its jurisdiction.
contends that the question of whether the Operating Engineers or
the Laborers’ Union had jurisdiction over the work performed for
which contributions are now sought is a matter for the NLRB to
decide under §10(k) of the NLRA, and that these ERISA proceedings
may undermine its authority.
addresses intervention of right and permissive intervention.
24(a), governing intervention of right, provides in relevant part:
Intervention of Right. On timely motion, the court
must permit anyone to intervene who:
* * *
claims an interest relating to the property or
transaction that is the subject of the action,
and is so situated that disposing of the
action may as a practical matter impair or
impede the movant’s ability to protect its
interest, unless existing parties adequately
represent that interest.
Rule 24(a)(2). Under this provision, a third party may qualify for
intervention upon satisfying four elements: (1) the timeliness of
the application; (2) a substantial legal interest in the case; (3)
impairment of the applicant’s ability to protect that interest in
the absence of intervention; and (4) inadequate representation of
that interest by parties already before the court.
Coalition for Homeless and Service Employees Intern. Union, Local
1199 v. Blackwell, 467 F.3d 999, 1007 (6th Cir. 2006).
Circuit has stated that “Rule 24 should be ‘broadly construed in
favor of potential intervenors.’”
Stupak-Thrall v. Glickman, 226
F.3d 467, 472 (6th Cir. 2000)(quoting Purnell v. Akron, 925 F.2d
941, 950 (6th Cir. 1991)).
The first factor, the timeliness of the application, is not
disputed by plaintiffs. The NLRB’s application was timely filed in
the early stages of these cases.
In regard to the second factor, whether the NLRB has a
substantial legal interest in the case, the Sixth Circuit employs
“a rather expansive notion of the interest sufficient to invoke
intervention of right.”
Providence Baptist Church v. Hillandale
Comm., Ltd., 425 F.3d 309, 315 (6th Cir. 2005).
Close cases are
resolved in favor of recognizing an interest under Rule 24(a).
Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir.
“[A]n intervenor need not have the same standing necessary
to initiate a lawsuit in order to intervene in an existing district
court suit where the plaintiff has standing.”
Church, 425 F.3d at 315.
Thus, the fact that the NLRB might
otherwise have no standing under ERISA to participate in the
instant actions does not preclude intervention.
Defendants contend that the outcome of the work assignment
dispute currently pending before the NLRB is relevant to their
obligation to pay ERISA contributions.
Although plaintiffs take
the position that the NLRB’s resolution of the work assignment
dispute between the two unions is irrelevant to whether defendants
have an obligation under the collective bargaining agreements to
pay ERISA contributions, they recognize that there is a split of
authority on that issue.
In Trustees of B.A.C. Local 32 Ins. Fund
v. Ohio Ceiling & Partition Co., 48 F.App’x 188 (6th Cir. Oct. 4,
2002), an action for contributions brought by the trustees of union
funds against an employer under ERISA, the Sixth Circuit noted that
while it had not specifically addressed this split among the
circuits, it had rejected a claim for damages for breach of
contract by one union when the NLRB resolved the jurisdictional
dispute in favor of another union. 48 F.App’x at 197 (citing Local
1519 v. Rockwell Int’l Corp., 619 F.2d 580, 584-85 (6th Cir.
The court further commented that the “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 [before the NLRB] for resolving the
jurisdictional work assignment issue.”
Id. at 198.
suggests that the NLRB’s request to intervene to protect its
jurisdiction to decide the work assignments at issue in these cases
is relevant to plaintiffs’ ERISA claims.
The Sixth Circuit addressed the issue of NLRB intervention in
Irvin H. Whitehouse & Sons Co., Inc. v. Local Union No. 118 of
Intern. Broth. of Painters and Allied Trades, AFL-CIO, 953 F.2d
1384 (table), 1992 WL 19472 (6th Cir. Feb. 5, 1992), a similar case
involving arbitration to resolve which of two rival unions could
claim the plaintiff’s employees as members.
The court rejected
plaintiff’s argument that only parties to the arbitration could
intervene, and held that the district court properly permitted the
NLRB to intervene in the case, noting that the “NLRB’s interest in
the case is ‘direct, substantial, and significantly protectable.’”
Id., 1991 WL 19472 at *6 (quoting United States v. Carrols Dev.
Corp., 454 F.Supp. 1214, 1219 (N.D.N.Y. 1978)).
The court further
commented that the NLRB’s statutory authority under the NLRA to
hear and determine allegations of unfair labor practices gave the
NLRB “a public interest, unmatched by any other participant in the
case” and that the NLRB “clearly has an interest in protecting its
The NLRB has a similar substantial legal
interest in protecting its jurisdiction in these cases, where the
legal arguments advanced by plaintiffs concerning the rights of the
Operating Engineers’ funds to contributions under ERISA could have
the effect of undermining the NLRB’s decision holding that the work
Laborers’ Union members.
The second element has been satisfied
To satisfy the third element, the intervenor must show only
that impairment of its substantial legal interest is possible if
intervention is denied, a minimal burden.
Grutter v. Bollinger,
188 F.3d 394, 399 (6th Cir. 1999). This element is satisfied here.
It is only in the particular context of these ERISA actions that
the work assignment determination of the NLRB is under indirect
attack due to plaintiffs’ claims for contributions to the Operating
Engineers’ funds for work which the NLRB has determined was
properly awarded to Laborers’ Union members.
The NLRB would
ordinarily have no involvement as a party to an ERISA action for
It is only as an intervenor that the NLRB will be
able to assert any arguments it has against plaintiffs’ claims for
The burden of establishing the fourth element, that the
intervenor’s interest is not adequately protected by the existing
parties, is also a minimal one; “it is sufficient to prove that
representation may be inadequate.”
(emphasis in original).
Blackwell, 467 F.3d at 1008
“It may be enough to show that the
existing party who purports to seek the same outcome will not make
all of the prospective intervenor’s arguments.”
Miller, 103 F.3d
Plaintiffs argue that the defendants are capable of
adequately briefing the legal arguments regarding what weight, if
However, the NLRB correctly notes that the goal of
the defendants in these cases is to avoid liability for the payment
of the contributions sought.
These are private economic concerns
which are not shared by the NLRB. In contrast, the NLRB represents
and enforces the public interest.
It is the NLRB which has the
express statutory authority to settle work assignment disputes.
Rockwell Int’l, 619 F.2d at 582.
Thus, the NLRB’s perspective
differs from that of the parties to this action.
In light of its
expertise in dealing with matters within its jurisdiction, the NLRB
is also in a position to provide the court with legal arguments and
authorities which might not be forthcoming in the parties’ briefs.
The fourth element has been satisfied.
intervention of right have been met in these cases.
alternative, the court finds that permissive intervention under
Fed. R. Civ. P. 24(b)(2) is also appropriate.
provides in relevant part: “On timely motion, the court may permit
a federal ... agency to intervene if a party’s claim or defense is
based on: (A) a statute ... administered by the ... agency; or (b)
any ... order ... issued or made under the statute[.]”
for permissive intervention under Rule 24(b) is at the sound
discretion of the district judge.
Secretary of Dept. of Labor v.
King, 775 F.2d 666, 668 (6th Cir. 1985).
In ruling on the motion,
the court must consider whether the intervention will unduly delay
or prejudice the adjudication of the original parties’ rights.
Fed. R. Civ. P. 24(b)(3); Vassalle v. Midland Funding LLC, 708 F.3d
747, 760 (6th Cir. 2013).
In the cases before the court, the defendants have raised a
defense based on the decision of the NLRB in the jurisdictional
dispute between the Operating Engineers and the Laborers’ Union.
This decision was rendered pursuant to the NLRB’s authority under
§160(k) of the NLRA, a statute administered by the NLRB, to resolve
work assignment disputes.
There is no indication in the record
that intervention by the NLRB early in these cases will unduly
delay the resolution of these cases or prejudice the adjudication
of plaintiffs’ claims.
The NLRB states that it seeks to intervene
to apprise the court of the significance of the related proceedings
before the NLRB.
The NLRB indicates that it does not intend to
conduct discovery, that it does not seek to introduce new facts or
issues into these proceedings, and that the briefing of any
additional issues will result in minimal additional time and
Doc. 17-1. pp. 4-5.
The court concludes that the
requirements for permissive intervention have also been satisfied.
The motion of the NLRB to intervene is granted.
proceedings in Orrand v. Hunt Construction Group, Case No. 2:13-cv481, Orrand v. Donley’s Inc., Case No. 2:13-cv-489, Orrand v.
Cleveland Concrete Construction, Inc., Case No. 2:13-cv-556, Orrand
v. B&B Wrecking & Excavating, Inc., Case No. 2:13-cr-864, and
Orrand v. Precision Environmental Co., Case NO. 2:13-cv-900, are
hereby consolidated. The motion of the NLRB to intervene in Orrand
Concrete Construction, Inc., Case No. 2:13-cv-556, Orrand v. B&B
Wrecking & Excavating, Inc., Case No. 2:13-cr-864, and Orrand v.
Precision Environmental Co., Case NO. 2:13-cv-900 is granted.
Defendant’s motion to dismiss or to stay filed in Case No. 2:13-cv489 (Doc. 10) is moot in light of the stay order filed in that case
on December 16, 2013 (Doc. 28). The five cases shall remain stayed
until further order of this court.
Date: August 8, 2014
s/James L. Graham
James L. Graham
United States District Judge
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