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U.A. LOCAL NO. 343 OF THE UNITED ASSN. OF JOURNEYM

April 22, 1992

U.A. LOCAL NO. 343 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO; U.A. LOCAL NOS. 159, 342, 342 AND 444 COMBINED PENSION TRUST FUND; U.A. LOCAL NOS. 59, 342, 343 and 444 COMBINED HEALTH & WELFARE TRUST FUND; and U.A. LOCAL NO. 343 JOURNEY MAN AND APPRENTICE TRAINING TRUST FUND, Plaintiff,
v.
NOR-CAL PLUMBING, INC.; NORTH BAY PLUMBING, INC; ELMAR LEE PETTIT, a.k.a. Elmer Lee Pettit; and AUDREY JEAN PETTIT, Defendants.



The opinion of the court was delivered by: BARBARA A. CAULFIELD

 This matter comes before the court on defendants' motion for partial summary judgment and plaintiffs' cross-motion for partial summary judgment. Oral argument was heard on January 17, 1992. After careful consideration of the parties' written and oral arguments, documents submitted in support, and the record as a whole, the court finds it appropriate to DENY defendants' motion and GRANT plaintiffs' motion.

 BACKGROUND

 Plaintiffs are U.A. Local No. 343, a plumbers and pipefitters union, and the labor-management trust funds in which it participates. Defendant Nor-Cal Plumbing, Inc. ("Nor-Cal"), has been a party signatory to successive collective bargaining agreements with plaintiff U.A. Local 343 since at least 1965. *fn1" The complaint alleges that defendants transferred the business of Nor-Cal, owned by defendant Elmar Lee Pettit, to defendant North Bay Plumbing, Inc. ("North Bay"), which was established in 1980. North Bay is a non-union company allegedly owned by Mr. Pettit's wife, defendant Audrey Jean Pettit, but which plaintiffs contend was in fact owned, controlled and managed by Mr. Pettit. It is alleged that North Bay continued Nor-Cal's business, but has not honored U.A. Local 343's Labor Agreement (the "Agreement").

 In Count II, plaintiff trust funds seek an audit in order to recover the pension, health and welfare and other fringe benefit contributions they should have received had defendants applied the Agreement to North Bay. Plaintiffs have obtained the audit through discovery, and seek judgment in the amount of $ 2,551,244.28 delineated as follows: 1) fringe benefit contributions - $ 1,066,820.07; 2) liquidated damages - $ 106,682.09; 3) interest - $ 899,066.00; 4) attorneys fees and litigation - $ 478,736.12. Their claims are made under Section 301 of the LMRA for breach of the Agreement and under Sections 502 and 515 of ERISA for failure to make the required contributions.

 In Count III, plaintiffs claim that defendants fraudulently concealed the true nature and extent of their business through affirmative acts of deception as well as failures to disclose material information.

 Count IV is a claim by plaintiff trust funds for punitive damages in an amount equal to compensatory damages based upon the alleged willful and malicious behavior of defendants. Plaintiffs seek an order granting summary judgment against all four defendants on Counts II, III and IV of the Complaint. *fn2"

 STATUTE OF LIMITATIONS AND/OR LACHES

 Defendants again attempt to raise a state of limitations or laches defense in this action. However, plaintiff's claims have already been held not to be time-barred. As Judge Schwarzer stated in his order dated May 24, 1988,

 This undisputed record of fraud, deception and obstruction suffices to estop these defendants from asserting the statute of limitations after January, 1981.

 New facts have not been brought to light, but rather defendants seek to reargue points previously raised and rejected. The court will not entertain such arguments.

 SUMMARY JUDGMENT

 Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where the movant shows that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law. In making this determination, the Court must draw inferences in the light most favorable to the non-moving party, and the burden is on the movant to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 , 91 L. Ed. 2d 202 (1986). Once the moving party has met this burden, the non-moving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Thus, the non-moving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538 , 106 S. Ct. 1348 , (1986).

 NOR-CAL AND NORTH BAY-ALTER EGO TEST

 This case arises out of the alleged double-breasting of defendants. A double-breasted employer relationship is where a union-signatory business or its owners also have an interest in another similar non-union business. Although double-breasting is not per se unlawful, if the non-union-business is found to be the "alter ...


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