Free Declaration in Support - District Court of California - California

Case 3:07-cv-05045-MMC

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Filed 04/11/2008

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1 /Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 SALTZMAN & JOHNSON LAW CORPORATION 120 Howard Street, Suite 520 3 San Francisco, CA 94105 (415) 882-7900 4 (415) 882-9287 ­ Facsimile [email protected] 5 [email protected] 6 Attorneys for Plaintiffs 7 8 9 10 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: C07-5045 MMC DECLARATION OF WAYNE E. McBRIDE IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT Date: May 16, 2008 Time: 9:00 a.m. Location: 450 Golden Gate Avenue San Francisco, California Courtroom: 7, 19th Floor Judge: The Honorable Maxine M. Chesney I, Wayne E. McBride, declare as follows: 1. I am the Collections Manager of the Operating Engineers Local Union No. 3 Trust

GIL CROSTHWAITE, et al., as Trustees of the 11 OPERATING ENGNEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN 12 CALIFORNIA, et al., 13 14 v. Plaintiffs,

15 JOHN TAYLOR NORTHROP, individually and dba KRISTIN CONSTRUCTION, 16 Defendant. 17 18 19 20 21

22 Funds, plaintiffs in the above-captioned matter. I have held this position since January 1995. As 23 Collections Manager, I oversee payment of employer contributions pursuant to the collective 24 25 delinquent accounts. My duties also include reviewing internal accounting reports regarding 26 27 delinquent contributions owed by employers under collective bargaining agreements. In the course bargaining agreements and trust agreements, and initiate negotiations and collection actions on

28 of my duties as Collections Manager, I became familiar with the accounts of defendant JOHN 1 DECLARATION OF WAYNE E. McBRIDE IN SUPPORT CASE NO.: C07-5045 MMC
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1 TAYLOR NORTHROP, individually and dba KRISTIN CONSTRUCTION. I therefore have 2 personal knowledge of the matters stated herein and could competently testify to them if called 3 4 5 6 7 California Construction Agreement, the "Collective Bargaining Agreement," on May 31, 2001. It has not been terminated by either party to the Agreement. Attached hereto as Exhibit A is a true upon to do so at trial. 2. KRISTIN CONSTRUCTION became signatory to the Independent Northern

8 and correct copy of the Independent Northern California Construction Agreement. 9 3. JOHN TAYLOR NORTHROP is the sole proprietor of, and conducts business as,

10 KRISTIN CONSTRUCTION. The named defendant in this action is not an infant, incompetent 11 12 1940. This knowledge is based upon comments made to me during my conversation with JOHN 13 14 TAYLOR NORTHROP when I have phoned him at KRISTIN CONSTRUCTION's number for person, in the military or otherwise exempted under the Soldiers' and Sailors' Civil Relief Act of

15 business at 775-690-5267 and successfully contacted him to discuss the status of KRISTIN 16 CONSTRUCTION. I also know based upon my conversations with JOHN TAYLOR 17 NORTHROP that he conducts business in California. 18 19 20 California between the Operating Engineers Local Union No. 3 and the Associated General 21 22 Contractors of California, Inc., et al., by reference. The Master Agreements for the periods 20024. The Collective Bargaining Agreement between KRISTIN CONSTRUCTION and

the Operating Engineers Local Union No. 3 incorporates the Master Agreement for Northern

23 2006 and 2006-2010 (which cover the period of the audit), Section12.13.00 et seq., provide that an 24 employer must pay any contributions due including those found due upon audit, plus auditors fees, 25 attorneys fees and costs. Attached hereto as Exhibit B-1 and B-2 and incorporated herein by 26 27 28 2 DECLARATION OF WAYNE E. McBRIDE IN SUPPORT CASE NO.: C07-5045 MMC reference are true and correct copies of this Section of each Agreement. ///

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5.

The Collective Bargaining Agreement between KRISTIN CONSTRUCTION and

2 the Operating Engineers Local Union No. 3 incorporates the Master Agreement by reference. The 3 4 5 6 7 a true and correct copy of this Section. 6. The Collective Bargaining Agreement requires signatory employers to make timely Master Agreement, at Section 03.02.00, provides that an employer must provide his records to an auditor upon written request. Attached hereto as Exhibit C and incorporated herein by reference is

8 contributions into the Trust Funds at a specified rate for each hour worked by, or paid by, all 9 employees performing work covered under the Master Agreement. It also requires employers to 10 report the number of covered hours worked by, or paid to, each of their employees performing 11 12 pursuant to the Reports, to the Trust Funds. The Master Agreements, Sections 12.13.01 through 13 14 12.13.03, attached hereto as Exhibits B-1 and B-2, provide that liquidated damages are calculated covered work by submitting Employer Reports of Contributions, along with the amounts owed

15 at $35.00 or 15% of the amount due for contributions, whichever is greater, and interest is 16 calculated at 12% per annum on the combined total of contributions and liquidated damages, from 17 the 26th day of each month in which contributions due were not received or timely postmarked by 18 the 25th, until payment is received. 19 20 the books and records of signatory employers so that the Trust Funds may determine if the 21 22 employer is making full and prompt payment of required contributions. Article IV, Section 6, of 7. The Trust Agreements governing the Operating Trust Funds provide for an audit of

23 the Trust Agreement for the Pension Trust Fund For Operating Engineers, which is representative 24 of the language of the Agreements for the other Operating Engineers Trust Fund named in this 25 proceeding, provides that: 26 27 28 The Board can require the Employer. . .to submit to it any information, data, report, or documents reasonably relevant to and suitable for the purposes of such administration . . . Reasonable cause appearing therefore upon notice I writing from the Board, a Contributing Employer must permit 3 DECLARATION OF WAYNE E. McBRIDE IN SUPPORT CASE NO.: C07-5045 MMC

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a certified public accountant appointed by the Board to enter upon the premises of such employer during business hours, at all reasonable time or times, and to examine such books, records, papers or reports of such Contributing Employer as may be necessary to determine whether such Contributing Employer is making full and prompt payment of all sums required to be paid by him or it to this Fund.

5 A true and accurate copy of the Trust Agreement for the Pension Trust Fund For Operating 6 Engineers is attached hereto as Exhibit D. 7 8 contributions since July 2006. A question therefore arose concerning the lack of compliance by 9 10 KRISTIN CONSTRUCTION with the provisions of both the Trust Agreement and the Master 8. In or about January 2007, I determined that defendants had not paid all

11 Agreement requiring the prompt and correct reporting and payment of all reports and contributions 12 to the Trust Funds. An audit was required to determine the extent to which reports and 13 contributions had and had not been made in accordance with the Collective Bargaining Agreement 14 and Trust Agreements. 15 16 accounting firm and auditor for the Trust Funds, which regularly conducts compliance inspections 17 18 19 for employee benefit plans, to commence a Special Audit on KRISTIN CONSTRUCTION. 10. The following day, on January 9, 2007, I wrote to defendants requesting that they 9. On or about January 8, 2007, I authorized Hemming Morse, a certified public

20 submit to an audit of their records by Hemming Morse, for the period January 1, 2003 through 21 date of inspection, to determine whether they had made other required contributions. Such 22 23 24 25 26 27 2007. hereto as Exhibit E. 11. An audit was performed for the period from January 1, 2004 through March 31, determination entails an inspection of an employer's records and a compilation of what that inspection discloses in the form of a report. A true and accurate copy of that letter is attached

The auditor's report revealed $17,787.51 due and owing to plaintiffs for unpaid

28 contributions. The addition of liquidated damages, interest, wage violations and auditors fees 4 DECLARATION OF WAYNE E. McBRIDE IN SUPPORT CASE NO.: C07-5045 MMC
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1 increase that debt to $38,164.48, as shown on the audit report. (See Declaration of Philip J. 2 McNally). 3 4 5 6 7 July 2006 through February 2007, as well as for the audit liabilities determined on the audit just completed. A true and accurate copy of the page of Trust records summarizing unpaid 12. On July 26, 2007, I referred this matter to legal counsel to pursue other known

fringe benefit shortages of $49,099.39 and unpaid liquidated damages and interest, for the period

8 contributions as reported by defendants, is attached hereto as Exhibit F, showing $49,088.39 still 9 owing in contributions, and $24,591.37 owing in liquidated damages and interest through April 9, 10 2008. 11 12 true copy of the summary of the defendants' account. This report reflects only the shortages of 13 14 payments reported by defendants as due, and does not reflect the additional underpayments found 13. None of these amounts due have been paid, as reflected in Exhibit G, which is a

15 due on audit. 16 14. On or about August 6, 2007, I wrote to defendants, enclosing a copy of the

17 auditor's report and billing for payment of all amounts found due upon audit, plus liquidated 18 damages, interest and audit fees, and enclosing a copy of the audit report, and allowing 5 days for 19 20 amounts have been paid. 21 22 15. The Trust Funds have incurred auditor's and attorneys fees and costs that are payment. A true and accurate copy of that letter is attached hereto as Exhibit H. None of those

23 detailed in the accompanying Declaration of Muriel B. Kaplan, filed herewith, in support of 24 Motion for Entry of Default Judgment. Section 12.13.02 of the Master Agreements, attached 25 hereto as Exhibit B-1 and B-2, provides for the recovery of attorneys' and accountants' fees and 26 27 28 5 DECLARATION OF WAYNE E. McBRIDE IN SUPPORT CASE NO.: C07-5045 MMC costs in an action to determine and recover a delinquent balance due. ///

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I declare under penalty of perjury that the foregoing is true and correct and that if called

2 upon as a witness, I could testify to the foregoing on the basis of my personal, direct knowledge. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DECLARATION OF WAYNE E. McBRIDE IN SUPPORT CASE NO.: C07-5045 MMC ________________/s/_______________ Wayne E. McBride Executed this 11th day of April, 2008, at Sacramento, California.

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1 2 3 4 I, the undersigned, declare: I am a citizen of the United States and am employed in the County of San Francisco, State PROOF OF SERVICE

5 of California. I am over the age of eighteen and not a party to this action. My business address is 6 120 Howard Street, Suite 520, San Francisco, California 94105. 7 8 9 On April 11, 2008, I served the following document(s): DECLARATION OF WAYNE E. McBRIDE IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT

10 on the interested parties in said action by placing a true and exact copy of each document in a 11 sealed envelope with postage thereon fully prepaid, in a United States Post Office box in San 12 13 14 15 16 17 I declare under penalty of perjury that the foregoing is true and correct and that this Francisco, California, addressed as follows: John Taylor Northrop dba Kristin Construction 1781 Autumn Meadows Fairfield, California 94585

18 declaration was executed on this 11th day of April, 2008, at San Francisco, California. 19 20 21 22 23 24 25 26 27 28 1 DECLARATION OF WAYNE E. McBRIDE IN SUPPORT CASE NO.: C07-5045 MMC ______________/s/__________________ Vanessa de Fábrega

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