Orrand v. Hunt Constr. Grp., Inc.
| Decision Date | 21 June 2016 |
| Docket Number | Case No. 2:13-cv-489, Case No. 2:13-cv-556, Case No. 2:13-cv-864,Case No. 2:13-cv-481, Case No. 13-cv-900 |
| Citation | 193 F.Supp.3d 854 |
| Parties | Raymond ORRAND, et al., Plaintiffs, v. HUNT CONSTRUCTION GROUP, INC., Defendant. Raymond Orrand, et al., Plaintiffs, v. Donley's, Inc., Defendant. Raymond Orrand, et al., Plaintiffs, v. Cleveland Concrete Construction, Inc., Defendant. Raymond Orrand, et al., Plaintiffs, v. B&B Wrecking & Excavating, Inc., Defendant. Raymond Orrand, et al., Plaintiffs, v. Precision Environmental Company, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Allen Shawn Kinzer, Daniel J. Clark, James W. Pauley, III, Vorys Sater Seymour & Pease, Columbus, OH, for Plaintiffs.
Meredith C. Shoop, Littler Mendelson PC, Frank W. Buck, Inna Shelley, Cleveland, OH, for Defendant.
The above actions have been brought pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., by Raymond Orrand, Administrator of the Ohio Operating Engineers Health and Welfare Plan, Pension Fund, Apprenticeship Fund, and Education and Safety Fund ("the Funds"), and the trustees of those Funds against defendants Hunt Construction Group, Donley's Inc., Cleveland Concrete Construction, Inc., B&B Wrecking & Excavating, Inc., and Precision Environmental Company (hereinafter "defendants" or "employers"). Defendants are construction industry employers which hire workers who are members of various unions.
Plaintiffs allege that under ERISA § 515, 29 U.S.C. § 1145, defendants are required to make contributions to the Funds under the terms of collective bargaining agreements between the Construction Employers Association ("CEA") and the International Union of Operating Engineers, Local 18 and its branches ("Operating Engineers"), to which defendants are signatory employers. The collective bargaining agreements, attached as Exhibits 1 and 2 to the Amended Complaint, were in effect from May 1, 2009, through April 30, 2012, and from May 1, 2012, through April 30, 2015. Plaintiffs seek contributions under those agreements for work (forklift and skid steer operation) which was allegedly within the jurisdiction of Operating Engineers but was performed by employees who were represented by the Laborers' International Union of North America, Local 310 ("Laborers"). Plaintiffs request payment of contributions allegedly owed the funds, access to defendants' records for the purpose of conducting an audit, statutory interest, costs and attorney's fees, and injunctive relief.
After the filing of plaintiffs' amended complaint in Case No. 2:13–cv–481, this court entered an order on September 26, 2013, denying the motion to dismiss filed by Hunt Construction, but granting Hunt Construction's motion to stay proceedings. See Case No. 2:13–cv–481, Doc. 20. On December 16, 2013, the other four cases were also stayed on motion of the defendants. The purpose of the stay was to await a decision of the National Labor Relations Board ("NLRB") regarding charges of unfair labor practices filed by defendants against Operating Engineers and Laborers pursuant to the National Labor Relations Act ("NLRA") § 8(b)(4)(ii)(D), 29 U.S.C. § 158(b)(4)(ii)(D). The proceedings before the NLRB under NLRA § 10(k), 29 U.S.C. § 160(k), involved a jurisdictional dispute between the two unions as to which union's members should be assigned work operating forklifts and skid steers on construction sites run by defendants in the Cleveland, Ohio, area. The employers alleged that Operating Engineers violated § 8(b)(4)(ii)(D) by engaging in proscribed activity, including threats of strikes and the filing of "pay-in-lieu [of work]" grievances, with the object of forcing or requiring defendants to assign the forklift and skid steer work to Operating Engineers members rather than Laborers members.
On May 22, 2014, Hunt Construction filed a notice in Case No. 2:13–cv–481 stating that the NLRB had rendered a decision on May 15, 2014. See Case No. 2:13–cv–481, Doc. 28. The NLRB resolved the § 10(k) jurisdictional conflict by awarding the disputed work to defendants' employees who are represented by Laborers in the area of defendants' operations where the jurisdiction of Laborers Local 310 and Operating Engineers Local 18 overlap. Doc. 28, Ex. 1, p. 7. A related case memorandum order filed on June 18, 2014, transferred Case Nos. 2:13–cv–489, 2:13–cv–556, and 2:13-cv-900 to the docket of the undersigned judge. By order filed on August 8, 2014, this court granted defendants' motion to consolidate the five cases. Because additional proceedings before the NLRB were anticipated, the stay in the five cases was continued. The court also granted the NLRB's motion to intervene in Case Nos. 2:13-cv-489, 2:13-cv-556, 2:13-cv-864 and 2:13-cv-900.
Following a status conference on December 19, 2014, the magistrate judge assigned to these cases directed defendants to file a motion to continue the stay, and, if appropriate, a motion for summary judgment, by January 30, 2015. On January 30, 2015, defendants filed a motion for summary judgment and for a continuance of the stay. In response to defendants' motion, the NLRB, as intervenor, filed a motion for summary judgment on February 20, 2015. The NLRB's motion addressed the issue of whether the NLRB proceedings were dispositive of the claims presented in this case, and also supported the arguments made in defendants' summary judgment motion.1 Plaintiffs filed responses in opposition to both motions. On May 11, 2016, defendants filed a notice of an NLRB order dated May 6, 2016. See Case No. 2:13–cv–481, Doc. 44. This order adopted the April 9, 2015, decision of the administrative law judge ("ALJ") who presided over later proceedings involving defendants' complaints that Operating Engineers refused to comply with the NLRB's May 15, 2014, decision by continuing to pursue "pay-in-lieu" grievances. Doc. 44, Ex. 1, p. 4. The NLRB found that by maintaining grievances after the NLRB's § 10(k) determination, Operating Engineers violated § 8(b)(4)(ii)(D).
These cases are now before the court on the pending motions for summary judgment and to continue the stay.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). No genuine dispute of fact is presented by the summary judgment motions. Rather, the issues presented by the motions for summary judgment are legal questions for the court.
29 U.S.C. § 1132(a)(3).
The Funds represented by plaintiffs are ERISA "employee benefit plans" as defined in 29 U.S.C. § 1002(3). The Funds are also "multiemployer plans" as defined in 29 U.S.C. § 1002(37)(A). ERISA § 515, 29 U.S.C. § 1145, provides:
Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.
29 U.S.C. § 1145.
The fringe benefit provisions of the applicable collective bargaining agreements governing contributions to the Funds apply to the defendant employers. Amended Complaint, Exs. 1 and 2, §§ 37, 38. The collective bargaining agreements also provide that "[f]ringe benefit contributions shall be paid at the following rates for all hours paid to each employee by the Employer under this Agreement[.]" Amended Complaint, Exs. 1 and 2, § 39. Defendants correctly note that no hours were paid to employees under "this Agreement," i.e., the Operating Engineers agreement, for the forklift and skid steer work at issue here because employees represented by Laborers were assigned to and paid for that work under defendants' collective bargaining agreements with Laborers. This provision in itself does not support plaintiffs' claims for contributions to the Funds.
Amended Complaint, Exs. 1 and 2, § 10. This clause specifies that forklift and skid steer work is to be assigned to employees represented by Operating Engineers. The collective bargaining agreements further state:
If the Employer assigns any piece of equipment to someone other than the Operating Engineer, the Employer's penalty shall be to pay the first qualified registered applicant the applicable wages and fringe benefits from the first day of violation.
Amended Complaint, Exs. 1 and 2, § 21. Plaintiffs claim that under this "penalty" language, defendants made an unambiguous promise to pay fringe benefit contributions to the Funds for forklift and skid steer work awarded to Laborers-represented employees. Plaintiffs claim these contributions even though defendants made benefit contributions to the Laborers' funds for that work pursuant to the collective bargaining agreements between defendants and Laborers.
The Sixth Circuit has noted that "courts have held that the mere fact that an award of benefits could cause an employer to ‘pay double’ would not be sufficient to relieve the employer of its contractual obligation to make contributions to the ERISA fu...
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...under § 1132(a)(3) seeking to enforce an employer's obligations to contribute to an ERISA fund." Orrand v. Hunt Construction Group, Inc., 193 F.Supp.3d 854, 859 (S.D. Ohio, 2016) (Graham, D.J.). It is therefore dubious at best for Defendants to transform Plaintiffs' ERISA enforcement claim ......