Wilson v. Bridge Overlay Sys., Inc.

• Decision Date: 15 September 2015
• Docket Number: Case No. 2:14-CV-00156
• Parties: Carol A. Wilson, Administrator, et al., Plaintiffs, v. Bridge Overlay Systems, Inc., Defendant.
• Court: U.S. District Court — Southern District of Ohio

129 F.Supp.3d 560

Carol A. Wilson, Administrator, et al., Plaintiffs,

v.Bridge Overlay Systems, Inc., Defendant.

Case No. 2:14-CV-00156

United States District Court, S.D. Ohio, Eastern Division.

Signed September 15, 2015

Daniel J. Clark, Allen Shawn Kinzer, Vorys Sater Seymour & Pease, Bryan Charles Barch, The Ohio Operating Engineers, Columbus, OH, Elizabeth B. Howard, Vorys, Sater, Seymour and Pease, LLP, Dayton, OH, for Plaintiffs.

John Carter Pfau, Pfau, Pfau & Marando, Canfield, OH, Michael P. Marando, Youngstown, OH, for Defendant.

OPINION & ORDER

Algenon L. Marbley, United States District Court Judge

I. INTRODUCTION

Administrator and Trustees of the Ohio Operating Engineers Health & Welfare Plan, the Ohio Operating Engineers Pension Fund, the Ohio Operating Engineers Apprenticeship Fund, and the Ohio Operating Engineers Safety & Education Fund (collectively "Plaintiffs"), move this Court for Summary Judgment, pursuant to Fed. R. Civ. P. 56(a)

, against Bridge Overlay Systems, Inc. ("Defendant") for allegedly delinquent fringe benefit contributions, as well as interest, liquidated damages, attorneys' fees and costs resulting from Defendant's failure to pay such benefits contributions. (Doc. 32). Plaintiffs assert that Defendant is obligated to pay the delinquent contributions under a collective bargaining agreement, to which they allege Defendant is a party. Defendant filed a Cross-Motion for Summary Judgment under Fed. R. Civ. P. 56(a), in which it raises several defenses to the Plaintiffs' collection action. (Doc. 23). For the reasons stated herein, Plaintiffs' motion is GRANTED, and Defendant's motion is DENIED.

II. BACKGROUND

A. Factual Background

Plaintiffs are the Administrator and Trustees of the Ohio Operating Engineers Health & Welfare Plan, the Ohio Operating Engineers Pension Fund, the Ohio Operating Engineers Apprenticeship Fund, and the Ohio Operating Engineers Safety & Education Fund ("the Funds"). The Funds are jointly-administered multi-employer fringe benefit programs established for the benefit of employees of contractors who are signatories to a collective bargaining agreement ("CBA") between the International Union of Operating Engineers, Local Nos. 18, 18A and 18B ("the Union") and the Labor Relations Division of the Ohio Contractors Association. The CBA is titled the "Heavy Highway Equipment Agreement."

Bridge Overlay Systems is a bridge resurfacing contractor. Larry Berasi is the owner of Bridge Overlay Systems. In 2006, a business agent of the Union approached Berasi to sign some agreements with them. On April 18, 2006, Berasi signed an agreement titled, "Ohio Residential Light Commercial Agreement with International Union of Operating Engineers, Local 18 and its Branches, AFL-CIO," ("Light Commercial Agreement"). The first paragraph of the Light Commercial Agreement states that it:

[s]hall be known as the Ohio Residential Light Commercial Agreement, effective May 15, 2004 and shall be terminated without automatic renewal on May 15, 2007. As a condition precedent to execution of this Agreement, the Company [Bridge Overlay] must execute another Agreement with the Union covering highway heavy construction work which has been reduced to writing and is known as the Ohio Highway Heavy Agreement between the Union and the Labor Relations Division of the Ohio Contractors Association, or any "short form" adaptation of the aforestated Agreement, hereinafter called the "Master Agreement."

The remaining portions of the Light Commercial Agreement details: the work scope, which includes private residential housing projects and public housing projects; the wage rates, reporting pay, and overtime pay rules for such residential projects; and rules for employing apprentices on such projects. Article VII, § 1 of the Light Commercial Agreement declares that "[t]he only terms intended are as written in this Agreement. All terms and conditions of the ‘Master Agreement’ shall remain in full force and effect except as modified by the Agreement."

On the same day, Berasi signed a separate sheet of paper entitled, "Acceptance of Agreement." It was unattached to any other papers. It read, in its totality:

In consideration of the benefits to be derived and other good and valuable consideration, the undersigned contractor or successors, although not a member of the Labor Relations Division of the Ohio Contractors Association, does hereby join in, adopt, accept and become a party to the collective bargaining agreement heretofore made by the Labor Relations Division of the Ohio Contractors Association with the International Union of Operating Engineers, Local 18 and its Branches (AFL-CIO) including all of the provisions therein, and those pertaining to contributions to Trust Funds providing for Health & Welfare, Pension, Apprenticeship Training, or any other fringe benefits and agrees to be bound by any Trust Agreements hereafter entered into between these parties and agrees to make contributions as required and authorizes these parties to name the Trustees to administer said funds and ratifies and accepts such Trustees and the terms and conditions of the Trusts as if made by the undersigned.

Berasi also signed a series of letters that day, which the Union called "Letters of Assignment." The Union faxed the letters to Berasi, and instructed him to copy the contents of the proposed letters onto Bridge Overlay letterhead, sign them, and send them back to the Union. Berasi thought that the letters defined what pieces of equipment were covered by the 2006 Acceptance of Agreement, and believed that these letters were incorporated into the Acceptance of Agreement. The standard letter read as follows:

We have reviewed our equipment needs as they relate to Decisions of Record and Trade Agreements. As a result of that review, we find that equipment, such as our Rubber Tire Hoe , properly falls within the jurisdiction of the Operating Engineers.

We, therefore, assign the operation, maintenance, repair, assembly and disassembly of these machines, used on our projects as required in work undertaken by our company, to the International Union of Operating Engineers, Local 18.

This assignment stands whether the work required is full time or intermittent. It is understood that the Operating Engineer Rubber Tire Hoe operator may have to assist in other areas in order to fill in his/her day productively.

Thank you,

Larry C. Berasi.

In addition to signing a letter assigning the Rubber Tire Hoe, Berasi signed identical letters for the following pieces of equipment: Any Excavator, Skid Steer Loaders, Bobcats, Industrial/Rt. Forklift, Loadall. After Berasi faxed the letters back to the Union, the Union sent him a booklet containing the Heavy Highway Equipment Agreement. A review of the Heavy Equipment Agreement booklet shows that the final page contains the "Acceptance of Agreement" contract which Berasi signed on April 18, 2006. Berasi attests that when he signed it, however, it was unattached to the booklet.

Article V of the Heavy Highway Equipment Agreement deals with Fringe Benefit Programs. Article V, § 34 states: "The fringe benefit provisions contained herein shall apply to all Employer members of the Labor Relations Division of the Ohio Contractors Association...all Employers who become signatory, or bound by this Agreement." Article V, § 35 states: "Fringe benefit contributions shall be paid at the following rates for all hours paid to each employee by the Employer under this Agreement...;" then, it lays out the relevant rates. Finally, Article XI, Term of Agreement, § 90 states: "This Agreement shall be effective as of May 1, 2004 and shall continue in force and effect through April 30, 2007 and thereafter, from year to year, until terminated at the option of either party after sixty (60) days notice in writing to the other party."

After Berasi signed the series of documents and letters on April 18, 2006, he did not sign any more agreements with the Union until 2012. In July 2012, a Union business agent approached him again who wanted Bridge Overlay to execute an agreement with the Union. On July 17, 2012, Berasi signed an Acceptance of Agreement, unattached to any other papers, which was identical to the one he signed in 2006. He also signed a series of "Letters of Assignment," which were identical to those signed in 2006. The letters, once again, defined which pieces of equipment were under the jurisdiction of the Union. As before, after faxing the letters back to the Union, the Union sent Berasi a booklet containing the "Heavy Highway Equipment Agreement."

On February 13, 2014, Plaintiffs filed a complaint alleging that Defendant failed to submit to an audit. Thereafter, the parties entered into a Stipulation and Order under which Defendant consented to an audit of its payroll records. The audit covered the period April 1, 2006 through April 1, 2014. It indicated that Defendant owes $190,800.45 in unpaid fringe benefit contributions, inclusive of $74,822.58 in late charges. All but a minimal amount of the unpaid fringe benefit contributions stem from one employee, Richard Miller.

Since 1994, Miller has worked for Defendant performing services as a driver, paving supervisor, Bidwell Paver operator, and heavy equipment operator. Before 2007, Miller operated heavy equipment on a limited basis; the last time was in 2006. Miller has operated the Bidwell Paver during the last eight years of his career, and has not operated any other construction equipment on job sites covered by the Operating Engineers Union. The Bidwell Paver was not included in the letters detailing the equipment covered by the agreement, nor is the Bidwell Paver mentioned within the 2006 or 2012 agreements with the Union. In 2006, when Miller operated machinery other than the Bidwell Paver, Defendant made payments within the scope of the agreement with the Union to the Union's Pension Fund, and the Health & Welfare Plan for the benefit of Miller. Miller has been a dues-paying...