SERVICE EMP. v. Baucom Janitorial Service, Inc., Civ. A. No. 80-1326.

• Decision Date: 30 October 1980
• Docket Number: Civ. A. No. 80-1326.
• Citation: 504 F. Supp. 197
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 82 LABOR-MANAGEMENT TRUST FUND, Plaintiff, v. BAUCOM JANITORIAL SERVICE, INC., Defendant.
• Court: U.S. District Court — District of Columbia

504 F. Supp. 197

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 82 LABOR-MANAGEMENT TRUST FUND, Plaintiff, v. BAUCOM JANITORIAL SERVICE, INC., Defendant.

Civ. A. No. 80-1326.

United States District Court, District of Columbia.

October 30, 1980.

Thomas J. Hart, Washington, D. C., for plaintiff.

Stephen Edds, Columbus, Miss., for defendant.

ORDER

AUBREY E. ROBINSON, Jr., District Judge.

Upon consideration of Defendant's Motion for Summary Judgment, Plaintiff's Motion for Summary Judgment and Dismissal of Counterclaim, Defendant's Opposition thereto, and the entire record herein, the Court notes that (1) pursuant to two collective bargaining agreements, Defendant is obligated to make monthly health and welfare contributions to Plaintiff; (2) the amount of such contribution is to be calculated on the basis of the total number of productive hours worked by Defendant's employees in each particular month; (3) the amount of such contribution was mistakenly calculated by Defendant on the basis of the total number of compensated hours, which included nonproductive hours (e. g. holidays, vacations and sick leave); (4) the error in calculations led to excess contributions by Defendant to Plaintiff in the amount of $7,162.38 between September 1977 and October 1979; (5) Defendant applied the full $7,162.38 excess contributions as an offset against the contributions owed for the months of March and April 1980; (6) Plaintiff asserts Defendant was not, and is not entitled to a return of any of the excess contributions made due to this mistake, alleging that such mistake in calculations constituted a mistake of law for which no refund is available; (7) Defendant contends it is entitled to an offset in an amount equal to the contributions mistakenly made over the course of one full year, as such mistake was one of fact; (8) the Employment Retirement Income Security Act (ERISA), Section 403(c)(2) (29 U.S.C. § 1103(c)(2)(A)) expressly provides for the return of excess contributions made by an employer by a mistake of fact within one (1) year after the payment of the contribution; (9) a mistake of fact is one other than an error as to the legal consequences or legal obligations deriving from the bargaining agreement, such as an "arithmetical error" (H.Cong.Rep.No.93-1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 4639, 5038, 5083) or a "clerical error" (Central States, Southeast and Southwest Areas Pension Fund, et al. v. Wholesale Produce Supply Co., 478 F.Supp. 884 (4th D.Minn., 1979), 611 F.2d 694 (8th Cir., 1979)); (10) the facts claimed in Defendant's affidavits describe a mistake of...