Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

Case 1:06-cv-00312-TCW

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UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) MULTISERVICE JOINT VENTURE, LLC, ) ) Plaintiff, ) ) No. 06-312C -against) (Judge Wheeler) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ______________________________________) PLAINTIFF'S STATEMENT OF PROPOSED FINDINGS OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Multiservice Joint Venture, LLC ("MJV"), through its undersigned counsel, respectfully submits its Proposed Findings of Uncontroverted Facts in Support of its Motion for Partial Summary Judgment in the above-captioned Complaint, and state as follows: 1. Multiservice Joint Venture, LLC ("MJV") is a Maryland domestic

limited liability company with its principal office in Upper Marlboro, MD. Plaintiff's Complaint ("Complaint"), ¶ 3. 1 2. On or about February 14, 2003, the United States Navy awarded

MJV Contract No. N62447-02-D-0558, to perform janitorial services at the Naval Academy in Annapolis, MD. Complaint, ¶ 5; February 14, 2003 Solicitation, Offer and Award ("MJV Contract"). 2 operations at the Naval Academy on March 1, 2003. 3. MJV commenced Id.

The predecessor contractor, EPES Building Maintenance Co., Inc.

("EPES") entered into a five year collective bargaining agreement with the U.S. Naval Academy Cleaning Employees Bargaining Unit ("NACE") on or about September 11, 1998.
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NACE-EPES CBA w/Schedule

A copy of the Complaint is appended hereto as Exhibit 1.

A copy of the relevant sections of the MJV Contract is appended hereto as Exhibit 2.

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A ("EPES CBA"), at 13; Complaint, ¶ 11. 3 4. Under the EPES CBA, the janitorial employees received Additionally,

$11.79/hour during the last year of the EPES CBA. 4

the EPES CBA provided that all of the janitorial employees would receive a "universal" health care insurance plan without requiring any employee contributions or plan deductibles. Complaint, ¶ 12. 5. The United States Department of Labor ("DOL") recognized the EPES CBA, at 13;

EPES CBA as the basis of its May 24, 2000 Wage Determination for the CBA's five year term, i.e., October 1, 1998 to September 30, 2003. 6. Complaint, ¶ 11; May 24, 2000 Wage Determination. 5 However, the $2.15/hour contribution unilaterally allocated

by the Navy for said fringe benefits did not cover the escalating cost of providing this level of health care insurance during MJV's first year of operations. Complaint, ¶ 13; April 10, 2003 Letter In order to

from FCE Benefit Administrators, Inc. ("FCE Letter"). 6
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A copy of the relevant sections of the EPES CBA is appended hereto as Exhibit

3. The last year of the EPES CBA commenced on October 1, 2002. See EPES CBA, at 14. However, the EPES CBA terminated on February 28, 2003, simultaneous with the cessation of the predecessor's operations at the Naval Academy. See EPES CBA, at 1. During the period from March 1, 2003 to February 29, 2004, MJV maintained the same of level of wages and benefits as provided at the time of the EPES CBA's termination. As discussed infra, on March 1, 2004, the collective bargaining agreement between NACE and MJV went into effect, and the employees' wages and benefits correspondingly increased.
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A copy of the May 24. 2000 Wage Determination is appended hereto as Exhibit

4.
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A copy of the April 10, 2003 FCE Letter is appended hereto as Exhibit 5.

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maintain the same level of health and welfare benefits, MJV had to contribute $2.68/hour to cover the costs. FCE Letter. The Navy,

however, refused to reimburse the MJV for the additional expenditures for maintaining the employees' health care coverage during this period. Complaint, ¶ 15. 7. The shortfall between what MJV had to pay for fringe benefits

and what the Navy reimbursed MJV for these benefits resulted in MJV experiencing a $53,105.24 loss. April 22, 2005 Final Decision Letter, at 2; December 7, 2004 Request for Final Decision, at 6. 7 8. In denying the plaintiff reimbursement for the cost differential,

the defendant rationalized its position by explaining: Multiservice was not required to furnish employees with specific defined benefits or identical defined benefits provided for in the predecessor's CBA. As set forth in section 2(a)(2) of SCA and discussed in section 4.163(j) of Regulations, 29 CFR Part 4, a contractor may discharge its fringe benefit obligations by furnishing any equivalent combinations or [sic] fringe benefits or by making equivalent or differential payments in cash. April 22, 2005 Final Decision Letter, at 2; see Defendant's May 10, 2007 Objections and Responses to Plaintiff's First Set of Interrogatories ("Interrogatory Responses"), at 13-14. 8 9. In addition, on or about March 5, 2003, MJV recognized the U.S.

Naval Academy Cleaning Employees Bargaining Unit ("NACE") as the exclusive agent for its full-time and part-time janitorial workers
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A copy of the Final Decision Letter is appended as Exhibit 6; and a copy of the Request for Decision Letter is appended as Exhibit 7. A copy of the relevant sections of the Interrogatory Responses is appended hereto as Exhibit 8.

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at the Naval Academy. Complaint,

¶ 7. After engaging in extensive

labor negotiations spanning the ensuing eight months, the parties executed the MJV collective bargaining agreement on January 27, 2004. NACE-MJV CBA w/Schedule A ("MJV CBA"), at 25. 9 10. The DOL duly recognized the MJV CBA as the basis of its revised

February 9, 2004 Wage Determination for the CBA's entire term. February 9, 2004 Wage Determination. 10 11. Under the MJV CBA, the janitorial workers' wages rose from MJV CBA, at 26. The

$11.79/hour to $12.49/hour on March 1, 2004.

health and welfare contribution simultaneously rose from $2.15/hour to $2.85/hour. MJV CBA, at 26-27. On March 1, 2005, the employees' wages increased to $12.81/hour and their health and welfare contribution increased to $3.05/hour. 12. Id.

In light of the MJV CBA and the 2004 Wage Determination, on

February 24, 2004 MJV submitted a $326,629.47 price adjustment proposal to the Navy reflecting the aforementioned increases in labor and health care costs during the period from March 1, 2004 to February 28, 2005 (the first option year under the Contract and the first year of the MJV CBA). Request for Final Decision, at 3-4. However, the Navy

only paid MJV $184,975.35 of the aforementioned increased labor and benefit costs for this twelve month period in 2004-05. Request for

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A copy of the relevant sections of the MJV CBA is appended hereto as Exhibit

9.
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A copy of the February 9, 2004 Wage Determination is appended hereto as Exhibit 10.

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Final Decision, at 4. As a result, MJV suffered a loss of $141,653.92 in un-reimbursed labor and fringe benefits costs for this twelve month period. 13. Request for Final Decision, at 4.

In denying the plaintiff the $141,653.92, the defendant has

contended that the 1998 EPES CBA effectively controlled the wages and benefits for this twelve month period in 2004-05, despite the inarguable fact the MJV CBA and the February 9, 2004 Wage Determination required a superseding wage and benefit scale for this period. Interrogatory Responses, at 8-9; April 22, 2005 Final Decision Letter, at 2. Respectfully submitted,

s/Janice Davis____ _ Janice Davis Davis & Steele 1100 - 15th Street, N.W. Suite 300 Washington, DC 20005-1720 Telephone: 202-530-5828 Email: [email protected] Counsel to the Plaintiff Dated: October 22, 2007

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CERTIFICATE OF SERVICE I hereby certify that, on the 22nd day of October 2007, a copy of the plaintiff's Statement of Proposed Findings of Uncontroverted Facts in Support of its Motion for Partial Summary Judgment was served, via first class mail on: Brian T. Edmunds, Esq. Trial Attorney Commercial Litigation Branch Civil Division -- Classification Unit United States Department of Justice 1100 L Street, N.W., 8th Floor Washington, DC 20530 Counsel for the Defendant

s/Janice Davis________________ Janice Davis

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