Tamarin v. Adam Caterers, Inc.

• Decision Date: 27 December 1993
• Docket Number: No. 601,D,601
• Citation: 13 F.3d 51
• Parties: 127 Lab.Cas. P 10,967, 17 Employee Benefits Cas. 2147 Henry TAMARIN, as Chairman of the Board of Trustees of the Local 100 Vacation Fund, Plaintiff-Appellee, v. ADAM CATERERS, INC., Defendant-Appellant. ocket 93-7634.
• Court: U.S. Court of Appeals — Second Circuit

Page 51

13 F.3d 51

127 Lab.Cas. P 10,967, 17 Employee Benefits

Cas. 2147

Henry TAMARIN, as Chairman of the Board of Trustees of the

Local 100 Vacation Fund, Plaintiff-Appellee, v. ADAM CATERERS, INC., Defendant-Appellant.

No. 601, Docket 93-7634.

United States Court of Appeals, Second Circuit.

Argued Nov. 8, 1993.

Decided Dec. 27, 1993.

Ronald Cohen, New York City (Michael K. Benimowitz, of counsel), for appellant.

Joseph E. Gulmi, New York City, for appellee.

Before: CARDAMONE, JACOBS and GOODWIN ^*, Circuit Judges.

GOODWIN, Circuit Judge:

Adam Caterers, Inc. appeals a summary judgment awarding unpaid ERISA benefit contributions, interest, costs, and fees to the plaintiff trustee of a local union vacation fund, contending that material questions of fact exist which require either trial or further discovery and documentary proof.

Henry Tamarin, Chairman of the Board of Trustees of the Local 100 Vacation Fund (Hotel Employees and Restaurant Employees, AFL/CIO), sued to compel payment of delinquent contributions as required by a collective bargaining agreement. The terms of the agreement were not disputed, nor was the fact that a demand had been made upon Adam Caterers for payment and for payroll records.

The plaintiff filed an affidavit and an accountant's report based upon a fragmentary record of the number of employees covered by the bargaining agreement and the hours the plaintiff said they had worked. Adam Caterers denied the accuracy of the plaintiff's affidavit and accounting summary, but failed to provide its own records to dispute specific items of the claim.

The court took at face value the accountant's projection of the amount of the alleged underpayment on the theory that the defendant had both the opportunity and the duty to produce complete business records, and that in the absence of complete records, the plaintiff's accounting projections were entitled to the benefit of the doubt. After argument and further suggestions from the court that Adam Caterers had not made a factual response to the claim, the court entered a judgment for Tamarin in the amount of principal and interest, collection costs and fees pursuant to the terms of the collective bargaining agreement and the payroll review submitted by plaintiff.

Adam Caterers, Inc. had denied in its affidavit that all the workers listed by the plaintiff were covered employees, or that all the workers actually were sent out on the jobs alleged by the plaintiff, but failed to state specifically which employees were listed in error. The only substantial issue on appeal is whether the trial court correctly treated the defendant's answering affidavit as inadequate to forestall summary judgment.

The district court first overruled Adam Caterers' objection that the accountant's payroll review is inadmissible summary evidence pursuant to Fed.R.Civ.P. 56(e) and Fed.R.Evid. 1004. ¹ We find no error in this ruling. While the accountant's report no doubt could survive objection on evidentiary grounds at a trial, after a proper foundation and showing of the purpose for which it was offered, we have some reservations whether the document was, at the time it was offered, sufficiently probative to carry the plaintiff's case to summary judgment.

The trial judge correctly expected Adam Caterers to come forward, after having been timely served with the report, and offer some explanation that would account for the shortfall in contributions. Those portions of the accountant's report of the shortfall that related to employees who were unquestionably covered by the bargaining agreement could not reasonably be challenged. They therefore at least supported a finding that substantial sums were delinquent. Those portions of the accounting report that were based upon extrapolation from known facts had the usual shortcomings of inadequate facts. But the affidavit and accounting report at least shifted to the defense the burden of making a sufficient answer to show what material questions remained for trial. The so-called affidavit that the defense filed was virtually a repetition of the general denial in the answer.

State and federal tax regulations as well as the collective bargaining agreement required the employer to keep and furnish, when appropriate, employment records. Where records are incomplete, whether for good cause, or unknown cause, the burden of explaining the reason for the records not being available should fall, as the trial judge indicated in his memorandum, upon the party who has the legal and contractual duty to provide the records, and who is in a better position than his adversary to keep and vouch for the accuracy of such records.

Adam Caterers is a small employer, and may indeed have encountered some difficulty in reconstructing time and payroll records that it had failed to keep. However, when Adam Caterers simply rested on its pleadings, it failed to meet its burden of showing "specific facts" evidencing the need for trial. See, e.g., Cumberland Oil v. Thropp, 791 F.2d 1037, 1043 (2d Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 436, 93 L.Ed.2d 385 (1986).

Adam Caterers' claim that Tamarin did not meet his burden under Daubert v. Merrell Dow Pharmaceuticals, --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), by establishing the credentials of Peter Levin, the accountant who prepared the payroll review, is not supportable, as that case specifically dealt with the admissibility of scientific evidence. Payroll records are straightforward lists of names and hours worked. If a particular worker is not covered by the bargaining agreement because of a position in management or for some other reason, it is reasonable to expect the employer to bring forth the correct information in his possession.

Summary evidence is admissible as long as the underlying documents also constitute admissible evidence and are made available to the adverse party. Fed.R.Evid. 1006; United States v. Conlin, 551 F.2d 534, 538 (2d Cir.), cert. denied, 434 U.S. 831, 98 S.Ct. 114, 54 L.Ed.2d 91 (1977); see also Martin v. Funtime, Inc., 963 F.2d 110, 116 (6th Cir.1992) (any hearsay problem regarding summary evidence is satisfied by concluding that the underlying records themselves are admissible); United States v. Johnson, 594 F.2d 1253 (9th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979); Case & Co., Inc. v. Board of Trade of City of Chicago, 523 F.2d 355 (7th Cir.1975).

Here, the underlying documents--the payroll records of Adam Caterers--would have been admissible under the business records exception to the hearsay rule, Fed.R.Evid....