CENTRAL STATES, ETC. v. NE Friedmeyer-Sellmeyer Distribution Co., 84-1669C (5).
Decision Date | 12 January 1987 |
Docket Number | No. 84-1669C (5).,84-1669C (5). |
Parties | CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, Plaintiff, v. N.E. FRIEDMEYER-SELLMEYER DISTRIBUTION COMPANY, Defendant. |
Court | U.S. District Court — Eastern District of Missouri |
Donald J. Weyerich, Michael A. Kafoury, Clayton, Mo., Dave B. Helfrey, Gino F. Battisti, St. Louis, Mo., for plaintiff.
Mark D. Pasewark, St. Louis, Mo., for defendant.
Plaintiff Central States, Southeast and Southwest Areas Pension Fund contends that it has the right to audit the personnel records of defendant N.E. Friedmeyer-Sellmeyer Distributing Company. Defendant concedes that under the decision of the United States Supreme Court in Central States v. Central Transport, 472 U.S. 559, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985), plaintiff has the right to audit its records. However, Friedmeyer seeks to limit the records it must produce, and contends the Fund should not disclose any information it obtains to defendant's competitors or other third parties.
The parties tried this cause to the Court, and this Memorandum constitutes the Court's findings of fact and conclusions of law for purposes of Fed.R.Civ.P. 52(a).
Plaintiff Central States, Southeast and Southwest Areas Pension Fund is a multi-employer/employee benefit plan within the purview of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. The Fund provides a variety of benefits to employees of companies that have collective bargaining agreements with the International Brotherhood of Teamsters. Defendant N.E. Friedmeyer-Sellmeyer Distributing Company employs members of the Teamsters Union Local No. 688 and, as a member of a multi-employer bargaining association known as the St. Louis Fruit and Produce Association, the company entered into collective bargaining agreements with the Local in 1979 and 1982. In signing the collective bargaining agreements, Friedmeyer agreed to comply with the provisions of a 1955 trust agreement which created the Fund.
The collective bargaining agreements required Friedmeyer to make contributions to the Fund from December 28, 1980, to December 31, 1983. Apparently, the Fund has reason to believe that defendant did not make sufficient payments during this period. The parties agree that Central States has the right to conduct some kind of audit to ensure the company complied with the agreements. However, Friedmeyer contends that plaintiff should have access only to the personnel records of those employees covered by the applicable collective bargaining agreement. Additionally, the company has agreed to provide affidavits from non-covered employees attesting that they did not do bargaining unit work during the relevant time period. Plaintiff claims it has the right under ERISA and the collective bargaining agreements to determine which of Friedmeyer's employees fall within the bargaining unit. The Fund believes it should not have to depend on defendant's representations but, instead, should have the right to determine independently who qualifies for coverage.
Only by examining all of these documents can D'Onofrio accurately determine which employees can claim benefits under the trust agreement and, concomitantly, whether the company made sufficient contributions.
Defendant presented the testimony of its president, Norman Friedmeyer. He stated that the company does not keep Occupational Safety and Health Administration (OSHA) records, and does not issue forms 1099. Friedmeyer did indicate, though, that the company has some records, including time cards, W-2 forms and 941 forms. He did not specifically discuss the other types of records requested by the plaintiff.
In addition, defendant presented the expert testimony of Caroline J. Kittley, a certified public accountant. She stated that an audit on the scale proposed by the plaintiff is not necessary. Instead, the Fund can accurately determine the size of the bargaining unit during the pertinent time period by compliance testing, i.e. by examining the company's internal controls as represented by management. Kittley also asserted that the Fund can obtain affidavits from those persons whom defendant contends are not members of the collective bargaining unit.
Kittley admitted on cross-examination that she has never conducted a pension fund compliance audit. Although D'Onofrio is a Teamsters employee, the Court finds his testimony more convincing than that offered by Friedmeyer's expert. He has considerable expertise in this area, and Friedmeyer did not demonstrate any errors in his testimony. To conduct an effective audit, then, plaintiff must have access to the requested records of all of Friedmeyer's employees from December 28, 1980, through December 31, 1983.
The Court has subject matter jurisdiction of this cause pursuant to § 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185(a); § 502 of ERISA, 29 U.S.C. § 1132; and 28 U.S.C. § 1331.
In Central States v. Central Transport, the Supreme Court specifically rejected the argument offered by defendant that plaintiff should not have access...
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