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, No. 1:2012cv05646 - Document 28 (E.D.N.Y. 2014)

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

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Trustees of the Plumbers Local Union No. 1 Welfare... Plan et al v. Temperini Mechanical, Inc. et al Doc. 28 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 40 1(K) SAVINGS PLAN, ET AL., MEMORANDUM AND ORDER Plaintiffs, 12 Civ. 0 5646 (ILG) (SMG) - against TEMPERINI MECHANICAL, INC., ET AL., Defendants. ------------------------------------------------------x GLASSER, Sen ior United States District J udge: The Trustees of the Plum bers Local Union No. 1 Welfare Fund, Additional Security Benefit Fund, Vacation and Holiday Fund, Trade Education Fund, and 40 1(k) Savings Plan (“Local Trustees”), and Trustees of the Plum bers and Pipefitters National Pension Fund and Trustees of the International Training Fund (collectively “National Trustees,” and together with the Local Trustees “Trustees”) sue Tem perini Mechanical, Inc. (“TMI”) and J oseph Tem perin i (“Tem perini,” and together with TMI “Defendants”) for violating the Em ployee Retirem ent Incom e Security Act, as am ended, 29 U.S.C. § 10 0 1 et seq. (“ERISA”), and the Labor Managem ent Relations Act, 29 U.S.C. § 141 et seq. (“LMRA”). Plaintiffs m ove for sum m ary judgm ent. For the reasons that follow, the m otion is GRANTED with a lower dam ages award than the Trustees request. BACKGROU N D Unless otherwise noted, the following facts are undisputed. 1 TMI, a plum bing contractor operating in New York City, em ploys several m em bers of Local Union 1 Defendants have not subm itted a statem ent counterin g the Trustees’ Local Rule 56.1 statem ent, as required by subpart b of the local rule. This Court accordingly deem s the facts in the Trustees’ Local Rule 1 Dockets.Justia.com Num ber 1 of the United Association of J ourneym en and Apprentices of the Plum bing and Pipefitting Industry (“the Union”). Tem perini is the President and CEO of TMI, and has been a m ajority owner sin ce at least Novem ber 20 0 9. NYC Departm ent of Buildings Business Search (Dkt. No. 22-1); NYS Departm ent of State Business Search (Dkt. No. 22-2). TMI and the Union are parties to a collective bargaining agreem ent (“CBA”), which becam e effective on October 1, 20 0 5, and rem ains in effect. CBA at 2 (Dkt. No. 18 1). Tem perini signed the CBA as TMI’s President. CBA Signature Page (Dkt. No. 18 -2). The CBA requires TMI to, “[c]om m encing with the effective dates of this Agreem ent,” contribute funds on its own behalf or rem it funds withheld from its em ployees’ wages to several em ployee-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 m ultiem ployer em ployee-ben efit funds adm inistered at the local level (“Local 1 Funds”): the Welfare Fund; the Vacation and Holiday Fund; the Trade Education Fund; the Additional Security Ben efit Fund; and the 40 1(k) Savings Plan. CBA at 14– 17. Two of the 11 funds are m ultiem ployer em ployee-ben efit funds adm in istered at the national level (“National Funds”): the National Pension Fund; and the International Train ing Fund. Id. at 10 , 12, 14, 16. And lastly, four of the 11 funds are non-em ployee-ben efit funds operated by the Union (“Union Funds”): the Political Action Fund; the Organizing Fund; the Plum bing Industry Prom otion Fund; 2 and the fund for Union dues. Id. at 7, 11, 13, 22– 23. 56.1 statem ent adm itted to the extent that the record supports their statem ent. See Vt. Teddy Bear Co. v. 1-80 0 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 20 0 4). 2 At tim es, the Trustees seem to presum e that the Plum bing Industry Prom otion Fund, which was established “for the m utual benefit of all plum bing contractors who do business in the area,” is an em ployee-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 Plum bers Local Union No. 1 Welfare Fund v. Aljer Plum bing & Heating Corp., CV 0 9– 1815, 20 11 WL 1239878 , at 2 n .2 (E.D.N.Y. March 16, 20 11), report and recom m endation adopted by 2 The CBA provides the specific am ount due to each fund each m onth, as an hourly rate or a percentage of an em ployee’s gross wages. CBA at 7, 10 – 16. It also provides for an increase, to be allocated by the Union between wages and the ben efit funds, every six m onths between October 1, 20 0 5, and Septem ber 30 , 20 0 9. Id. at 10 , 12. The contributions and rem ittances m ust be m ade by the 20 th day of the m onth following the m onth in which the obligations were incurred. Id. at 18. Untim ely paym ents are subject to 10 % interest, 20 % liquidated dam ages, costs, and attorney’s fees, as well as lost earnings for em ployee contributions to the 40 1(k) Savings Plan. Id. at 15, 17, 19. The Trustees have provided three types of evidence to prove the am ount of delinquent paym ents. First, for the period from J anuary 1, 20 0 5, to Decem ber 31, 20 0 9, the Trustees subm it 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 subm itted the audit to TMI in October 20 11, and Tem perini responded that he had reviewed the audit and agreed with the CPA’s conclusions. 3 Tem perini Ltr. (Dkt. No. 21-2). Second, for the period from Decem ber 1, 20 0 9, through March 31, 20 11, Plaintiffs subm it 32 pages of TMI’s rem ittance reports, all of which Tem perin i signed, which detail how m uch m oney TMI was required to pay into the various funds each m onth based on its em ployees’ hours and wages that m onth. Rem ittance Reports (Dkt. No. 196). Using these reports, the adm inistrators of these funds conclude that TMI owes $ 98 ,316.39 in delinquent contributions to the Local 1 and Union Funds and $ 14,920 .16 20 11 WL 1187815 (March 30 , 20 11); Bricklayers & Allied Craftsm en , Local Un ion No. 3 v. Masonry & Tile Contractors Ass'n, CV– LV– 81– 726, 1990 WL 270 78 4, at *4– 6 (D. Nev. 1990 ). 3 Curiously, Tem perin i’s letter respondin g to the audit is dated October 5, 20 11, while the audit is dated October 10 , 20 11. 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, 20 12, through Septem ber 30 , 20 12, TMI did not subm it rem ittance reports and no audit has been done, so the Trustees estim ate the am ount due to the funds based on prior rem ittance reports, in accordance with the trust agreem ents governing the Local 1 and National Funds. 4 Welfare Fund Agreem ent at 27– 28 (Dkt. No. 19-1); Additional Security Benefit Fund Agreem ent at 31– 32 (Dkt. No. 19-2); Vacation an d Holiday Fund Agreem ent at 27– 28 (Dkt. No. 19-3); Trade Education Fund Agreem ent at 28– 29 (Dkt. No. 19-4); 40 1(k) Plan Agreem ent at 21 (Dkt. No. 19-5); National Pension Fund Agreem ent at 26– 27 (Dkt. No. 20 -1); International Training Fund Agreem ent at 28– 29 (Dkt. No. 20 -2). The adm inistrators of the funds estim ate 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 com plaint on Novem ber 16, 20 12. (Dkt. No. 1). Defendants filed an an swer on J anuary 4, 20 13, and an am ended answer on March 7, 20 13. (Dkt. Nos. 7 & 9). The Trustees m oved for sum m ary judgm ent on J anuary 27, 20 14. (Dkt. No. 16). Defendants filed their opposition papers on March 19, 20 14. Response (Dkt. 26). The Trustees filed their reply papers on April 2, 20 14. Reply (Dkt. No. 27). 4 There is no agreem ent that prescribes the sam e m ethod of estim ation for the Union Funds, though the Trustees assum e the sam e m ethod applies. 4 D ISCU SSION I. Le ga l Stan d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to an y m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” F ED. 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 nonm oving party. A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (quotation om itted). The m oving party bears the burden of establishing the absen ce of any gen uine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court deciding a m otion for sum m ary judgm ent m ust “construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities an d draw all reasonable inferences against the m ovant.” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quotation om itted). II. An a lys is 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. Mem orandum at 4 (Dkt. No. 23). They further contend that Tem perini 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 com bined $ 165,754.76 and the National Funds are due $ 21,30 9.83, plus 10 % interest per annum , and the greater of either 20 % liquidated dam ages or an other share of the interest paym ent. Id. at 4– 6. Plaintiffs do not ask for lost earnings for the untim ely 5 40 1(k) rem ittances an d say that they intend to seek attorney’s fees and costs at a later date. Id. at 11. A. Lia bility 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, an d that TMI failed to m ake such paym ents. Mem orandum at 3– 4. Defendants do not m ake any m eaningful argum ent regarding the issue of TMI’s liability. An em ployer is liable for delinquent contributions pursuant to ERISA if (1) the relevant funds are m ultiem ployer plans within the definition of ERISA, (2) the em ployer is obligated to pay contributions under the term s of the plans, and (3) the em ployer failed to pay contributions in accordance with the term s. Cem ent & Concrete Workers Dist. Council Welfare Fund v. Atlas Concrete Const. Corp., No. 0 9-CV-4892, 20 11 WL 2940 18 1, at *1 n.1 (E.D.N.Y. J uly 19, 20 11). The Trustees have dem onstrated that TMI is liable for delinquent contributions to the Local 1 an d National Funds. The uncontroverted evidence shows that the Local and National Funds are m ultiem ployer em ployee-benefit plans as defined in ERISA, see 29 U.S.C. § 10 0 2(3) & (37), that TMI is an em ployer that is obligated to pay contributions to the benefit plans under the CBA and trust agreem ents, see id. at § 10 0 2(5), and that TMI did not pay all of the required contributions. The Trustees have not, however, dem onstrated that TMI is liable for delinquent contributions to the Union Funds. In their com plaint, the Trustees seek delinquent 6 contributions only for the Local 1 and National Funds, 5 and a party m ay not raise new claim s in m otion briefing papers. See Wright v. Ernst & Young, LLP, 152 F.3d 169, 178 (2d Cir. 1998); Enzo Biochem , Inc. v. Am ersham , PLC, No. 0 2 CIV. 8448, 20 13 WL 594398 5, at *4 (S.D.N.Y. Oct. 22, 20 13). 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 paym ents to the Union Funds. 2 . Te m p e rin i The Trustees next argue that Tem perin i is personally liable for TMI’s delinquent contributions because he m eets ERISA’s definition of a fiduciary. Mem orandum at 6– 9. They present evidence that he is the President and CEO of TMI; that he has been a m ajority owner since Novem ber 20 0 9; and that he signed the CBA, rem ittance reports, and letter approving the audit on TMI’s behalf. CBA Signature Page; Tem perini Ltr.; NYC Departm ent of Buildings Business Search; NYS Departm ent of State Business Search. Defendants respond that Tem perini could be liable only if the Trustees m eet the requirem ents to pierce the corporate veil. Response at ¶ 5. They also contend that Tem perini should not be held personally liable because he was unable to m ake the paym ents due to circum stances out of his control: TMI’s treasurer em bezzled between $ 120 ,0 0 0 and $ 150 ,0 0 0 from the com pany, and TMI has not been paid for about $ 10 0 ,0 0 0 of work. Id. at ¶¶ 11, 14. 5 Their first claim alleges that TMI failed to pay contributions to the Local 1 Funds—which the Trustees define in the Com plaint as the Welfare Fund, Additional Security Ben efit Fund, Vacation and Holiday Fund, Trade Education Fun d, and 40 1(k) Savings Plan —from Novem ber 20 0 9 through Septem ber 20 12 (Com pl. at ¶¶ 4, 22); their second claim alleges that TMI failed to pay contributions to the 40 1(k) Savings Plan from October 20 10 through Septem ber 20 12 (Id. at ¶ 26); their third claim alleges that TMI failed to pay contributions to the National Pension Fund and In ternational Training Fund from Novem ber 20 0 9 through Septem ber 20 12 (Id. at ¶ 30 ); their fourth claim alleges that TMI failed to pay contributions to the Local 1 Funds durin g the audit period, from J anuary 20 0 5 through Decem ber 20 0 9 (Id. at ¶ 34); and their fifth claim alleges that Tem perini is personally liable for the delin quent contributions (Id. at ¶ 50 ). 7 A person is a fiduciary pursuant to ERISA, and thus individually liable for a corporation’s delinquent ERISA contributions, if 1) the plan agreem ent defines unpaid contributions as plan assets an d 2) the person possesses or exercises any discretionary authority or control respecting m anagem ent of those plan assets. 29 U.S.C. §§ 10 0 2(21)(A)(i), 110 9(a); Finkel v. Rom anowicz, 577 F.3d 79, 8 2 n.4, 8 5 (2d Cir. 20 0 9); Rahm v. Halpin, 566 F.3d 286, 289 (2d Cir. 20 0 9). “Congress intended the term [fiduciary] to be broadly construed.” Blatt v. Marshall & Lassm an, 8 12 F.2d 8 10 , 8 12 (2d Cir. 198 7). A person m ay 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., 8 75 F.2d 383, 388 (2d Cir. 1989). The uncontroverted eviden ce shows that Tem perini is personally liable for delinquent contributions to the Local 1 and National Funds. First, the trust agreem ents for the Local 1 an d National Funds define unpaid contributions as plan assets. Welfare Fund Agreem ent at 6; Additional Security Benefit Fund Agreem ent at 6; Vacation an d Holiday Fund Agreem ent at 6; Trade Education Fund Agreem ent at 6; 40 1(k) Plan Agreem ent at 5; National Pension Fund Agreem ent at 7; International Training Fund Agreem ent at 6. As m entioned above, the Union Funds are not within the scope of this lawsuit, so this Court need not address whether delinquent paym ents to the Union Funds are considered plan assets. Second, the Trustees have shown that Tem perini possesses discretionary authority over the unpaid contributions on account of his role as president, CEO, owner, and the person who approved and signed docum ents 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. 20 0 7) (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, 20 2 (S.D.N.Y. 1999) (concluding that president and controlling shareholder who ran the corporation and m ade paym ent decisions was a fiduciary). And although the Court sym pathizes with Tem perini about his difficulty m aking contributions given the circum stances his business faced, he has not cited an d the Court cannot find any legal authority for the proposition that these circum stances som ehow lessen his discretionary authority over the funds. B. D a m a ge s The Trustees request dam ages in the am ount of $ 165,754.76 for delinquent paym ents to the Local 1 and Union Funds an d $ 21,30 9.83 for delinquent paym ents to the National Funds for the period from J anuary 1, 20 0 5, to Septem ber 30 , 20 12. Mem orandum at 10 . Defendants respond that TMI was not obligated to m ake the entirety of these paym ents because TMI “only signed two agreem ents on or around the year of 20 0 4 an d 20 0 5 and did not sign the CBA in years 20 0 6-20 11.” Response at ¶ 7. They also contend that “Plaintiffs did not furnish any docum ents to support their claim that the am ount owed is $ 95,0 0 0 which is m erely speculative in n ature. Plaintiff’s [sic] speculate a num ber with no affidavit of an accountant or any individual or com pany that did an audit to invoice that any m oney was owed.” Id. at ¶¶ 3– 4. The Defendants do not otherwise challenge the Trustees’ dam ages calculations. The Defendants’ argum ents are baseless. First, the CBA becam e effective on October 1, 20 0 5, and provides that it “shall continue in effect until and including Septem ber 30 , 20 0 9, and during each year thereafter unless on or before the fifteenth (15th) day of J une, 200 9 or on or before the fifteenth (15th) day of J une of any year thereafter, written notice of term ination 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 term ination, the CBA rem ained in effect. Doherty Decl. 6 at ¶ 7 (Dkt. No. 18 ). Second, nowhere do the Trustees request dam ages in the am ount of $ 95,0 0 0 , and it is entirely unclear why Defendants refer to this am ount. Third, the Trustees have subm itted a great deal of docum entation to support their request, including an audit prepared by a CPA. The Court, however, has discovered several significant problem s with the Trustees’ calculations that require correction and ultim ately a lower dam ages award than the one the Trustees request. 1. Octo be r 1, 2 0 0 5, to N o ve m be r 3 0 , 2 0 0 9 To establish dam ages for the period from October 1, 20 0 5, to Decem ber 31, 20 0 9, the Trustees subm it 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 approxim ately 4,0 0 0 hours of work from J anuary 1, 20 0 5, to Decem ber 31, 20 0 9. 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 problem s with these figures. First, the audit includes delinquencies beginning on J anuary 1, 20 0 5, but the CBA did not becom e effective until October 1, 20 0 5. CBA at 2, 4, 28. Second, the Trustees have double-counted deficiencies for the m onth of Decem ber 20 0 9 by seeking dam ages based upon both the audit and rem ittance reports for this m onth. Moreover, for Decem ber 20 0 9, the audit provides for 6 The Court notes that the Doherty Declaration says that it is m ade “in support of Plaintiffs’ m otion for default judgm ent,” despite the fact that the Plaintiffs have m oved for sum m ary judgm ent. 10 a higher deficiency than the rem ittance reports for the Local 1 and Union Funds, an d the rem ittance reports include deficient paym ents 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 paym ents related to the Vacation and Holiday Fund: contributions to the fund itself, as well as additional paym ents 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 n ot say that TMI m ust pay FICA taxes in addition to its contributions to the Vacation and Holiday Fund. CBA at 14, 16. Correcting for these problem s, the Court has calculated that TMI owes the Local Trustees $ 11,8 47.88 for the period from October 1, 20 0 5, through Novem ber 30 , 20 0 9. 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 7 The audit provides that 8 20 hours were worked and TMI failed to pay contributions of $ 7,960 .40 to the Local 1 and Union Funds in Decem ber 20 0 9, while the rem ittance 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 Decem ber 20 0 9. The audit does not list deficient paym ents for the National Funds, whereas the rem ittance reports provide that TMI failed to contribute $ 1,0 37.52 to the National Funds in Decem ber 20 0 9. The Court uses the deficiencies as recorded in the rem ittance reports, which provide m ore detail than the audit. The deficiencies for Decem ber 20 0 9 are thus included in the next table rather than this table. 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 . D e ce m be r 1, 2 0 0 9 , to March 3 1, 2 0 11 To establish dam ages for the period from Decem ber 1, 20 0 9, to March 31, 20 11, the Trustees subm it m onthly rem ittance reports prepared by Tem perini, detailing the 12 num ber of hours worked, the em ployees’ gross wages, and the am ount TMI was required to pay to the various funds for that m onth. Based upon these reports, Walter Saraceni, the adm inistrator 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 Decem ber 20 0 9 through March 20 11. Saraceni Decl. at ¶ 7. William Sweeney, the adm inistrator of the National Funds, concludes that TMI was required and failed to contribute an addition al $ 14,920 .16 to the National Funds from Decem ber 20 0 9 through March 20 11. Sweeney Decl. at ¶ 7. Neither Saracen i nor Sweeney has provided the calculations underlying their conclusions. There are, again, several problem s with the Trustees’ figures for this period. First, as was the case with the audit calculations, Saraceni’s calculations include delinquent contributions for “Union assessm ents,” but as discussed above, delinquent contributions to the Union Funds are not within the scope of this lawsuit. Second, the rem ittance reports reflect an increase in the rate of contribution to the National Pension Fund in October 20 10 , from $ 2.41 to $ 2.91 per hour for J ourneym en and from $ 1.15 to $ 1.40 per hour for Helpers. But the CBA provides for increases only through Septem ber 20 0 9; the October 20 10 increase is therefore unsupported by the CBA. CBA at 10 , 12. Third, there are m iscalculations in the rem ittance reports—for the m onths of J anuary 20 10 and Decem ber 20 10 —and it is not clear that Saraceni or Sweeny accounted for these errors, all of which resulted in overpaym ent, 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 Decem ber 1, 20 0 9, to March 31, 20 11. 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 $101,149.76 3 . Ma rch 1, 2 0 12 , to Se p te m be r 3 0 , 2 0 12 To establish dam ages during this period, during which TMI did not subm it rem ittance reports, the Trustees estim ate the am ount due to the funds based on prior rem ittance reports. Saraceni Decl. at ¶¶ 6– 10 ; Sweeney Decl. at 6– 10 . The trust agreem ents for the Local 1 and National Funds direct that estim ates be based on the greater of the average m onthly contribution for either the m ost recent twelve m onths’ 8 Three paym ents to Union Funds are listed independently on the rem ittance reports and are therefore easily excised from the calculations. But paym ents to the Plum bin g Industry Prom otion Fund appear to be included in a joint contribution rate that also includes paym ents to the Local 1 Funds. The Court excises the paym ents to the Plum bing Industry Prom otion Fun d by subtracting the am oun t due to Plum bin g Industry Prom otion Fund—$ 0 .25 per hour worked (CBA at 11, 13, 21)—from the joint contribution rate. 14 reports or m ost recent three m onths’ reports. Welfare Fund Agreem ent at 27– 28 ; Additional Security Benefit Fund Agreem ent at 31– 32; Vacation an d Holiday Fund Agreem ent at 27– 28; Trade Education Fund Agreem ent at 28– 29; 40 1(k) Plan Agreem ent at 21; National Pension Fund Agreem ent at 26– 27; International Training Fund Agreem ent at 28– 29. According to Saraceni and Sweeney, the m ost recent twelve m onths’ reports covered the period from April 20 10 through March 20 11. Saraceni Decl. at ¶ 9; Sweeney Decl. at ¶ 9. (Saraceni and Sweeney don’t m ention the m ost recent three m onths’ reports, apparently having concluded that the m ost recent twelve m onths’ reports result in a higher m onthly average.) Saraceni concludes that the average m onthly contribution owed to the Local 1 and Union Funds from April 20 10 through March 20 11 was $ 5,360 .64, resulting in an estim ated delinquency of $ 39,414.48 for the seven-m onth period of March 20 12 through Septem ber 20 12. Saraceni Decl. at ¶¶ 9– 10 . Sweeney concludes that the average m onthly contribution owed to the National Funds from April 20 10 through March 20 11 was $ 912.81, m aking for an estim ated delinquency of $ 6,38 9.67 for the seven-m onth period of March 20 12 through Septem ber 20 12. Sweeney Decl. at ¶¶ 9– 10 . These estim ated delinquencies derive from Saracen i’s and Sweeney’s calculations for the period from April 20 10 to March 20 11. The estim ates therefore suffer from the sam e problem s as the calculations for the period from April 20 10 to March 20 11— nam ely, they include funds not within the scope of the lawsuit, include increases not provided for by the CBA, and m ay be based on incorrect rem ittance reports. Using the corrected calculations for the period from April 20 10 to March 20 11, the Court has calculated that the average paym ent to the Local 1 Funds was $ 4,986.8 2 15 per m onth and that the average paym ent to the National Funds was $ 843.58 per m onth. Multiplying these averages by seven results in delinquent paym ents to the Local Trustees in the am ount of $ 34,90 7.74 and delinquent paym ents to the National Trustees in the am ount of $ 5,90 5.0 6, for the period from March 1, 20 12, to Septem ber 30 , 20 12. 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. In te re s t The Trustees request 10 % interest per annum on all of the delinquent paym ents. Mem orandum at 10 . The Defendants do not object. ERISA entitles the Trustees to recover interest on unpaid contributions as provided for in the docum ents governing the em ployee-benefit plan. 29 U.S.C. § 1132(g)(2); Finkel v. Triple A Grp., Inc., 70 8 F. Supp. 2d 277, 286– 87 (E.D.N.Y. 20 0 9). The CBA provides for interest at the rate of 10 % per annum for delin quent contributions to the funds. 9 This am ounts to a daily interest rate of 0 .0 274%. The Court 9 The Court notes that som e of the trust agreem ents governin g the individual funds provide for the im position , in the Trustees’ discretion, of interest at rates between 12 and 18 percent. Welfare Fund 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 Agreem ent at 26; Additional Security Ben efit Fund Agreem ent at 29– 30 ; Vacation and Holiday Fund Agreem ent at 26; Trade Education Fund Agreem ent at 27; 40 1(k) Plan Agreem ent 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 . Sta tu to ry D am age s The Trustees are also entitled to the greater of either 20 % liquidated dam ages 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 dam ages, so the Trustees will receive statutory dam ages in the am ount of $ 48,280 .57 for the Local 1 Funds an d $ 6,745.57 for the National Funds. CON CLU SION For the foregoing reasons, the Local Trustees are entitled to judgm ent against the Defendants, jointly and severally, in the am ount of $ 229,839.96, and the National Trustees are entitled to judgm ent again st the Defendants, jointly and severally, in the am ount of $ 34,0 22.76. The Trustees are to appropriately apportion the dam ages between the Funds. See Trs. of the Plum bers Local Union, No. 1 Welfare Fund v. M.B. Mech. Corp., No. 12 Civ. 4798, 20 13 WL 173391, at *2 n.1 (E.D.N.Y. J an. 15, 20 13) (“[S]ince a fund-by-fund breakdown has not been dem onstrated or requested, and there is no inequity in requiring defendants to pay the total am ount due to all Funds, the Court is going to assum e that there is som e sharing agreem ent between plaintiffs.”). SO ORDERED. Dated: Brooklyn, New York J une 13, 20 14 / s/ I. Leo Glasser Senior United States District J udge 19

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