Trustees of the Ohio Bricklayers Health & Welfare Fund et al v. Walter Davis Marble and Tile Company, No. 1:2011cv00651 - Document 31 (S.D. Ohio 2014)
Court Description: FINAL JUDGMENT AND ORDER finding in favor of Plaintiff; Defendant to pay $25,137.34 to Plaintiffs. Signed by Judge Michael R. Barrett on 9/30/14. (ba1)
Download PDF
<![CDATA[
. 3) as well as September 1, 2012 to August 31, 2014 (Exh. 4, 5). To determine whether any penalties are owed, the Court looks to the statute, the language of the CBAs and the Plan language. The Employer Report and Contribution Collection Policy, Ohio Bricklayers’ Health and Welfare Plan provides: “In the event legal action is necessary, the employer will be solely responsible for all costs, payment processing fees, late fees, liquidated damages, 5 interest and all legal fees, court costs and audit costs incurred by the Fund(s).” (Pl. Exh. 10). For any action to recover contributions under ERISA, 29 U.S.C. §1132(g)(2) provides: In any action this subchapter by a fiduciary for or on behalf of the plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan: (A) (B) (C) (D) (E) the unpaid contributions; interest on the unpaid contributions; an amount equal to the greater of; (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under federal or state law) of the amount determined by the court under federal or state law) of the amount determined by the court under subparagraph (A); reasonable attorneys’ fees and costs of the action, to be paid by the defendant, and such other legal or equitable relief as the court deems appropriate. The statute also provides that “interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under Section 6621 of Title 26.” Each of the CBAs (Pl. Exh. 1, 2, 3, 4, 5) contain nearly identical language as it relates to the Health and Welfare Fund, which is contained in Article 8 of said contracts and the Pension Fund which is contained in Article 9 of said contracts. Article 8 merely states that the employer shall make the health and welfare payments on a monthly basis. Article 9 describes not only the payment required for pension contributions but, also that the employers are bound by the Board of Trustees’ action, (¶ 35), also the method of confirmation as described in ¶36, as well as the collection of fees, penalties 6 and assessments as described in ¶37. ERISA requires employers to make contributions that would produce pension plan assets sufficient to meet future vested pension liabilities. See 26 U.S.C. §146 (minimum funding standards); 29 U.S.C. §1082 (same); 29 U.S.C. §1301, et seq. (termination insurance); 29 U.S.C. §1364 (withdrawal liability). Some of the payments were submitted by Defendant within several days of the due date, while others were several weeks and in a few instances, a month or more late. Failure to make the contributions required by the collective bargaining agreement is a violation of 29 U.S.C. §1145. Hourly reports may or may not be sent in contemporaneously with the payment. (Tr. p. 35). However, if the payment is late, a letter is sent indicating such. (Tr. p. 37). If a payment is late there is flat 10% fee for each month in which that happens. (Tr. p. 37). However, the CBA calls for a five-day grace period and is automatically built into the due date. (Tr. p. 40). Once it is determined that a payment is late and interest is owed, it is calculated not from the end of the grace period but from the original due date. (Tr. p. 46). Defendant testified that he thought he had twenty days within which to make the required payments. (Tr. p. 100). Mr. Voegeli calculated that the total for late fees was $13,268.16. (Pl. Exh. 11). This is a combination of $10,453.35 for Health and Welfare and $2,833.26 for Pension. While Defendant clearly obligated himself in the CBAs to be bound by the Board of Trustees’ actions as it relates to the Pension Plan, there is no such agreement as to the collection of Health and Welfare benefits. 7 Therefore, Defendant is required to pay $2,833.26 as late fees on the Pension Plan contribution but no late fees on the Health and Welfare Plan. 1 COSTS Per the Collection Policy of the Funds, the delinquent employer is required to pay the cost of the audits unless no shortage is found. (Pl. Exh. 10). Mr. Hecker produced a bill for the audits (Exh. 8, 9) in the total amount of $5,150.00 which was paid by the Plan. The Court finds the amount submitted by Mr. Hecker to be reasonable for the services performed. Therefore, Defendant is liable for $5,150.00 plus additional costs associated with the auditor’s in-court testimony. Counsel is to submit any supplemental billing. ATTORNEY’S FEES Plaintiffs are the prevailing party and as such, in accordance with Exhibit 10, Defendant is responsible for Plaintiff’s reasonable attorney’s fees. Counsel is to submit a fee application to the Court within thirty (30) days of entry of this Order. 1 The difficulty the Court has is that the collection policy calls for liquidated damages based upon the amounts actually due and there was a justiciable controversy as to the amount in dispute and the Plaintiffs acknowledge the original calculation of September 4, 2012 to be an error as shown by the July 22, 2013 revision and the assessment of late fees is not appropriate. 8 CONCLUSION The Court finds in favor of Plaintiffs. Defendant is ordered to pay $25,137.34 to Plaintiffs, which is calculated as follows: $ 3,853.88 13,300.20 $17,154.08 5,150.00 2,833.26 $25,137.34 Shortage for the Ohio Bricklayers Pension Shortage for Ohio Bricklayers Health & Welfare Subtotal Audit fees Late Fees TOTAL Defendant also owes reasonable attorney fees in an amount to be determined at a later date by the Court. This matter is CLOSED. IT IS SO ORDERED. /s/ Michael R. Barrett Michael R. Barrett, Judge United States District Court 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
