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Board of Trustees of the Glaziers v. McManus

February 18, 2010


The opinion of the court was delivered by: Hayes, Judge


The matter before the Court is Plaintiff's Motion for Summary Judgment. (Doc. # 11).


Plaintiff initiated this action by filing the complaint on April 22, 2009. (Doc. # 1). The complaint alleges Defendant failed to pay dues and contributions to Plaintiff owed pursuant to a Labor Agreement in violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1145 and 1132(g)(2) and the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Id. Plaintiff alleges that it is the collections agent for employer contributions and dues owed to the Glaziers Architectural Metal and Glass Workers & Resilient Floor and Decorative Covering Workers Union # 1399 of San Diego and Imperial Counties ("the Union") and for three trust funds associated with the Union ("the Trust Funds.") (Doc. # 1 at 2). Plaintiff alleges Defendant, the owner of a business known as Tom's Carpet, signed a Labor Agreement on May 21, 2007, which required him to pay contributions to the Trust Funds based on the number of hours worked by his employees each month as well as dues to the Union. Id. at 3. Plaintiff alleges the contributions and dues were to be paid on the 15th of each month. Id. Plaintiff alleges Defendant was required to file a monthly report "even if no employees performing work covered by the Labor Agreement were employed during the corresponding month." Id. Plaintiff alleges the Labor Agreement allows Plaintiff to collect liquidated damages of 10% of the delinquent contributions or $25.00, whichever is greater, if Defendant fails to pay his contributions by the 20th of the month. Id. Plaintiff alleges Defendant failed to submit reports and pay contributions as required. Id. Plaintiff alleges that it is entitled to audit Defendant's books under the Labor Agreement to determine what contributions it is entitled to. Id. at 4. Plaintiff seeks to recover the contributions it is entitled to, liquidated damages, interest on all sums due, attorney's fees and costs, an order requiring Defendant to submit to an audit, and the fees associated with the audit. Id. at 4.

Defendant, proceeding pro se, filed an answer on June 4, 2009. (Doc. # 5). Defendant filed a verified answer which swore that he did not agree to an audit, that he was not aware of an audit when it took place in 2008, that the auditor did not have access to his business records and that the auditor "acted unethically and unprofessionally." (Doc. # 5 at 1). Defendant states that none of his workers at the time were members of the union and that the union dues and contributions were unreasonable. Id. Defendant states a company he was working for at the time told him he would not be paid for the job unless he agreed to "repayment of the $13,000" that the union said he owed. Id. Defendant states he felt "strong armed" into signing legal forms and that he was "deceived by . . . the union along with their attorneys." Id. at 2. Defendant requests that the complaint be dismissed. Id.

On October 9, 2009, Plaintiff filed its Motion for Summary Judgment. (Doc. # 11). On November 20, 2009, the Court issued a notice informing Defendant of his obligation to respond pursuant to Federal Rule of Civil Procedure 56(e)(2). (Doc. # 12). The Court ordered Defendant to file his opposition by December 7, 2009. Id. at 2. Defendant failed to file an opposition.


I. Plaintiff's Contentions

In its Motion for Summary Judgment, Plaintiff contends that it performed an audit of Defendant's business pursuant to the Labor Agreement. (Doc. # 11-1 at 3). Plaintiff contends that the audit was conducted by examining the "certified payroll records obtained from Prospecta Contract Flooring . . . , another signatory employer who subcontracts with Defendant." Id. Plaintiff contends that the audit revealed that Defendant failed to report 1,004 hours of labor, which resulted in $11,271.78 of unpaid dues and contributions and $1,054.38 in liquidated damages. Id. at 4. Plaintiff contends that it incurred $262.50 in fees for the audit. Id. Plaintiff contends that Defendant signed a payment agreement in February of 2009 which required him to pay $15,106.72 plus 10% annual interest on the unpaid balance in $400.00 monthly installments. Id. Plaintiff contends that after paying a single monthly installment of $400, however, Defendant defaulted. Id. Plaintiff contends that as of October 9, 2009, Plaintiff incurred $14,850 in attorney's fees and $469.00 in costs. Id. at 5. Plaintiff contends that in total, Defendant owes Plaintiff $31,061.10. Id. Plaintiff contends that the evidence it has attached to its motion establishes that there is no genuine issue of material fact as to Defendant's liability or the amount Defendant owes Plaintiff. Id. at 7-8.

II. Plaintiff's Evidence

Plaintiff submitted the Declaration of Diane Salazar, the Assistant Vice President of Associated Third Party Administrators, the administrator of the funds. (Doc. 11-2 at 1.) Salazar states Defendant signed the Labor Agreement attached to her declaration as Exhibit A on May 21, 2007. Id. at 2. Salazar states an audit was performed on April 3, 2008, which established that between May 1, 2007 and March 14, 2008, Defendant failed to pay contributions for 1,004 hours of work, resulting in $11,271.78 in unpaid contributions and dues. Id. at 4. Salazar states the Trust Fund paid $262.50 for the audit. Id. at 5. Salazar states that after the audit, Defendant submitted reports from March and December of 2008 which show he owes $1,923.30 in dues and contributions for March of 2008 and $384.64 in dues and contributions for December of 2008. Id. Salazar states Defendant failed to pay these amounts, resulting in $175.20 in liquidated damages on the March 2008 payment and $35.04 in liquidated damages on the December 2008 payment. Id. at 5. Salazar states Plaintiff negotiated a Payment Agreement with Defendant in which Defendant acknowledges he owes a total of $15,106.72, which he agreed to repay in monthly payments of $400.00 at a 10% annual interest rate on the unpaid balance. Id. Salazar states Defendant made one payment and then defaulted. Id. Salazar states Defendant now owes an additional $817.94 in interest on the unpaid balance as well as $182.40 in contributions and dues for January of 2009 and $40.00 in liquidated damages for non-payment. Id. at 6. Plaintiff submitted four exhibits with Salazar's Declaration: (1) Exhibit A, the Labor Agreement, (2) Exhibit B, the Audit Report, (3) Exhibit C, the Payment Agreement, and (4) Exhibit D, "an accounting of the current amounts owed by Defendant to Plaintiff. . . ." Id.

Articles XII through XV of the Labor Agreement signed by Defendant detail the amounts due per hour worked for the Health and Welfare Plan, Vacation and Holiday Pay, and the Pension Fund. Id. at 31-34. A modification of the original agreement sets the rate at $3.20 per hour towards vacation and holiday pay and at $4.60 per hour for the pension fund. Id. at 39. Article XVI of the Labor Agreement lays out the rules for paying into the funds, for dealing with delinquent payments, for liquidated damages, and for attorney's fees and court costs associated with suits for nonpayment. Id. at 35. The Labor Agreement was signed by Defendant on May 21, 2007. Id. at 38.

The Audit Report states Defendant had jobs at Campo Border Patrol Station, UCSD East Campus, and La Mesa Elementary School during the audit period where he payed his employees entirely in cash. Id. at 41. The Audit Report states the auditor examined certified payroll records to determine the amount due to Plaintiff and found that there were 1,004 unreported hours, totaling $10,543.80 in contributions, $1,054.38 in liquidated damages, and $727.96 in dues, for a total of $12,326.14. Id. With the audit fee of $262.50, the total amount due as of the date of the audit was $12,588. Id.

The Payment Agreement is an agreement between Plaintiff and Defendant in which Defendant conceded he owes the union $15,106.72 in unpaid contributions, liquidated damages, and audit fees. Id. at 45. Defendant stipulated that the payroll reports used to arrive at that figure are accurate. Id. at 45-46. Defendant agreed to pay $400 per month beginning February 20, 2009 until the balance was paid off and agreed that he would be charged 10% interest per year. Id. at 46. The Payment Agreement contains a clause that if Defendant failed to make any payment or failed to keep current with new ...

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