United States District Court, N.D. California, San Jose Division
BOARD OF TRUSTEES OF THE BAY AREA ROOFERS HEALTH & WELFARE TRUST FUND, ET AL., Plaintiffs,
GUDGEL YANCEY ROOFING INC., Defendant.
ORDER DENYING MOTION TO DISMISS RE: DKT. NO.
H. KOH United States District Judge
Board of Trustees of the Bay Area Roofers Health &
Welfare Trust Fund; Pacific Roofers Pension Plan; East
Bay/North Bay Roofers Vacation Trust Fund, Bay Area Counties
Roofing Industry Promotion Fund, Bay Area Counties Roofing
Industry Apprenticeship Training Fund; and Doug Ziegler, as
Trustee (collectively, “Plaintiffs”), are
multi-employer employee benefit plans. Plaintiffs bring this
action against Defendant Gudgel Yancey Roofing, Inc.
(“Defendant”) alleging violations of the
Employment Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001, and the Labor
Management Relations Act (“LMRA”), 29 U.S.C.
§ 185. ECF No. 31 (First Amended Complaint, or
“FAC”). Before the Court is Defendant's
motion to dismiss. ECF No. 32 (“Def. Mot.”). The
Court finds this matter appropriate for determination without
oral argument and hereby VACATES the motion hearing set for
March 23, 2016. See Civil L.R. 7-1(b). Having
considered the parties' submissions, the relevant law,
and the record in this case, the Court hereby DENIES
Defendant's motion to dismiss.
are multi-employer employee benefit funds. FAC ¶ 7.
Plaintiffs receive contributions from individuals who are
parties to a collective bargaining agreement
(“CBA”) that exists between Local 81 of the
United Union of Roofers, Waterproofers and Allied Workers,
AFL-CIO (“Local 81”), and the Associated Roofing
Contractors of the Bay Area Counties, Inc. Id. &
id. Ex. A (“CBA”). Under the CBA,
employers are bound to certain trust agreements (hereinafter,
“Trust Agreements”) which obligate employers
“to make timely contributions” to certain trust
funds, including, for example, the Bay Area Roofer's
Health & Welfare Trust. Id. ¶ 16. Under the
Trust Agreements and applicable collection policies,
“payments received later than the last day of the month
following the month in which the hours were worked are
delinquent and liquidated damages shall be assessed on all
delinquent contributions to the Trust Funds along with
interest.” Id. ¶ 21.
is a roofing, waterproofing, and contracting business in
Sacramento County, California. Id. ¶ 9. Since
approximately 2004, Defendant has requested apprentices from
Local 81's Joint Apprenticeship and Training Committee
Program (“JATC Program”). Id. ¶ 14.
Specifically, Defendant has requested apprentices by
submitting to Local 81 a “Request for Dispatch of an
Apprentice” form. Id. ¶ 15. The FAC does
not allege the number of apprentice requests that Defendant
has made since 2004, however Plaintiffs allege specific
examples of two instances in which Defendant requested and
received apprentices from Local 81.
on November 13, 2012, Mike Sperling (“Sperling”)
submitted a “Request for Dispatch of an
Apprentice” form to Local 81 on behalf of Defendant.
Id. ¶ 15 & Ex. B. On November 19, 2012,
Sperling “accepted” an apprentice “Referral
Page” from Local 81 and, the Court assumes, an
accompanying apprentice from Local 81. Id. ¶ 16
& Ex. C. The Referral Page that Sperling allegedly
accepted is on Local 81 letterhead and lists the employee
name “Eduardo Perez.” Id. The Referral
Page states that the individual is to “Report to:
Gudgel Yancey” and the Referral Page contains the
By accepting this referral, the individual employer
recognizes [Local 81] as the majority collective bargaining
representative of his or its employees employed in the
counties covered by the [CBA] between Local 81 and the
Associated Roofing Contractors of the Bay Area Counties and
recognizes the Union as the exclusive collective bargaining
agent for such employees and further agrees that it is bound
to said [CBA] including all the wages, hours, and all other
terms and conditions of such [CBA] including the payment of
all wage scales and all trust fund contributions specific and
required by said [CBA].
Id.; see also FAC ¶ 16.
also allege that on February 22, 2016, Jeff Bushey
(“Bushey”) submitted a “Request for
Dispatch of Apprentice Form” to Local 81 on behalf of
Defendant. Id. ¶ 15 & Ex. C. On February
23, 2016, Bushey “accepted” an apprentice
Referral Page from Local 81. Id. ¶ 16 & Ex.
C. The Referral Page that Bushey allegedly accepted lists the
employee name “Gustavo Perales, ” and states that
the individual is to “Report To: Gudgel Yancey
Roofing.” Id. The Referral Page contains the
same “Note” quoted above. Id.
further allege that Defendant has “paid union wages and
fringe benefit contributions to the Trust Funds pursuant to
the terms of the CBAs and Trust Agreements for dispatched
apprentices” from Local 81. Id. ¶ 17
& Ex. D. Moreover, Defendant has submitted monthly
employer reports to Plaintiffs. Id. ¶ 18.
Plaintiffs attach to the FAC monthly employer reports for the
months of July 2015 and April, May, and June of 2016.
Id. Ex. E. Id. ¶ 18; see also
Id. Ex. E. The monthly employer reports list the name of
each Trust Fund, and direct that checks shall be made payable
to “Roofers Local Union No. 81 Trust Funds.”
Id. Ex. E. There is an instruction that
“Payments not received by the last day of the month
following the month being reported are delinquent and subject
to liquidated damages to each Trust Fund plus interest on the
contributions due as provided in each Fund's Trust
Agreement.” Id. The attached monthly employer
reports include the names and social security numbers of
specific employees, the hours worked of each employee, the
“fringe rate” for each employee, and the
“fringe total owed” for each employee.
Id. An “apprentice training fee” is also
included in the “total check amount.”
Id. The monthly reports are signed by
Defendant's office manager, Nancy White, and include
language stating: “I certify that the information
herein is true and correct to the best of my knowledge and
belief and that all contributions due under the Trust
Agreement have been included.” Id. Plaintiffs
allege that “[t]hese monthly employer reports show
Defendant has paid and is paying the fringe benefit
contributions called for in the CBAs [and Trust Agreements]
for dispatched apprentices.” Id. ¶ 18.
to Plaintiffs, “Defendant has failed to submit its
employer contribution report including payment owed for the
month of October 2016.” Id. ¶ 24.
Moreover, “Defendant also owes [Plaintiffs] liquidated
damages and interest on its untimely payment of April-June
2016 contributions” to Plaintiffs, as required by the
CBA and Trust Agreements. Id. ¶ 25. Plaintiffs
also allege that Defendant has refused to submit to an audit
of its July 1, 2013 through September 30, 2013 payroll
records, although Defendant initially agreed to allow
Plaintiffs to conduct such an audit. Id.
filed suit against Defendant in this Court on July 29, 2016.
ECF No. 1. Plaintiffs asserted causes of action under ERISA
and the LMRA for delinquent contributions and breach of the
CBA and Trust Agreements. See Id. ¶¶
35-45. Plaintiffs also requested an injunction to audit