Free Complaint - District Court of California - California

Case 3:07-cv-05045-MMC

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Filed 10/01/2007

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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 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 GIL CROSTHWAITE, RUSS BURNS, in their 12 respective capacities as Trustees of the OPERATING ENGNEERS HEALTH AND 13 WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; PENSION TRUST FUND 14 FOR OPERATING ENGINEERS; PENSIONED OPERATING ENGINEERS 15 HEALTH AND WELFARE FUND; OPERATING ENGINEERS AND 16 PARTICIPATING EMPLOYERS PREAPPRENTICESHIP, APPRENTICE AND 17 JOURNEYMEN AFFIRMATIVE ACTION TRAINING FUND; OPERATING 18 ENGINEERS VACATION AND HOLIDAY PLAN; OPERATING ENGINEERS 19 CONTRACT ADMINISTRATION TRUST FUND; OPERATING ENGINEERS MARKET 20 PRESERVATION TRUST FUND; OPERATING ENGINEERS INDUSTRY 21 STABILIZATION TRUST FUND; BUSINESS DEVELOPMENT TRUST FUND; AND 22 HEAVY AND HIGHWAY COMMITTEE, 23 24 v. 25 JOHN TAYLOR NORTHROP, individually and dba KRISTIN CONSTRUCTION, 26 Defendants. 27 28 ///
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Case No.: C07-5045 MJJ COMPLAINT

Plaintiffs,

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Case No.: C07-5045 MJJ

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Parties The Operating Engineers Health and Welfare Trust Fund for Northern California;

Pension Trust Fund for Operating Engineers (which includes the Pension Plan for the Pension Trust Fund for Operating Engineers, and the Operating Engineers Annuity Plan); Pensioned Operating Engineers Health and Welfare Fund; Operating Engineers and Participating Employers Pre-Apprenticeship; Apprentice and Journeyman Affirmative Action Training Fund; and

8 Operating Engineers Vacation and Holiday Plan are employee benefit plans as defined in the 9 Employee Retirement Income Security Act of 1974 ("ERISA") § 3(3), 29 U.S.C. § 1002(3). They 10 and their fiduciaries are together referred to herein as "ERISA Plaintiffs." Gil Crosthwaite and 11 12 authority to act on behalf of all Trustees. 13 14 2. Operating Engineers Local Union No. 3 of the International Union of Operating Russ Burns are Co-Chairmen of the Joint Boards of Trustees of the ERISA Plaintiffs with

15 Engineers, AFL-CIO ("Union") is a labor organization as defined in § 2(5) of the National Labor 16 Relations Act ("NLRA"), 29 U.S.C. § 152(5). 17 3. JOHN TAYLOR NORTHROP individually and doing business as KRISTIN

18 CONSTRUCTION are employers by virtue of ERISA § 3(5), 29 U.S.C. § 1002(5), and NLRA § 19 20 Jurisdiction 21 22 4. Jurisdiction exists in this Court over the claims asserted by the ERISA Plaintiffs by 2(2), 29 U.S.C. § 152(2). They are referred to herein as "Defendants".

23 virtue of ERISA § 502, 29 U.S.C. § 1132, in that the ERISA Plaintiffs seek to enforce the 24 provisions of ERISA and the terms of their plans, seek to enjoin the acts and practices which 25 violate ERISA, seek equitable relief to redress such violations, and seek all other appropriate relief 26 27 28
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under ERISA. ///
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1

5.

Jurisdiction exists in this Court over all the claims by virtue of Labor Management

2 Relations Act ("LMRA") § 301, 29 U.S.C. § 185, in that the plaintiffs seek to enforce the terms 3 4 5 6 7 6. To the extent jurisdiction over any claim does not exist under ERISA or the and conditions of a collective bargaining agreement between the employer and a labor organization.

LMRA, supplemental jurisdiction exists in this Court over such claims by virtue of 29 U.S.C. §

8 1367 in that they arise out of a common nucleus of operative facts that form the basis of the 9 federal claims asserted herein, each of which has a substantial ground in federal jurisdiction. 10 11 12 all of the plans of the ERISA Plaintiffs are administered within this district and the breach took 13 14 15 place in this district. 8. Venue exists in this Court with respect to the claims under LMRA §301(a) because 7. Venue Venue exists in this Court with respect to the claims under ERISA § 502 because

16 this Court has jurisdiction over the parties, as the Union maintains its principal place of business in 17 this district, its duly authorized officers or agents are engaged in representing employee members 18 in this district, and the claims arise in this district. 19 20 9. 21 22 the events and omissions giving rise to plaintiffs' claims occurred in the County of Alameda, The basis for assignment of this action to this court's Oakland Division is that all of Intradistrict Assignment

23 where the ERISA Plaintiff funds and union dues, were administered during the period claimed 24 herein, and where defendants therefore failed to fulfill its statutory and contractual obligations to 25 the plaintiffs. 26 27 28
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Bargaining Agreement The Union and defendants entered into a collective bargaining agreement requiring

employer contributions to the Plaintiff Funds, and to the Union for union dues and to other Trust Funds more fully described in the Master Agreement incorporated into the Independent Northern California Construction Agreement to which defendant is signatory. That Agreement is referred to herein as the "Bargaining Agreement," and the ERISA Plaintiffs and Trust Funds are third party

8 beneficiaries of that Bargaining Agreement. 9 11. The Operating Engineers Market Preservation Fund, Operating Engineers Industry

10 Stabilization Trust Fund, Business Development Trust Fund, and Heavy and Highway Committee, 11 12 the assignees of monies due under the Bargaining Agreement. 13 14 12. Under the terms of said Bargaining Agreement and of the governing documents of together referred to herein as "Trust Funds," are funds for which plaintiff Boards of Trustees are

15 the ERISA Plaintiffs which documents are incorporated into the Bargaining Agreement and made 16 binding on defendants, defendants are required to submit monthly reports of hours worked by its 17 employees, and to regularly pay to the Plaintiff ERISA Funds, to the Union for union dues, and to 18 the Trust Funds, certain sums of money, the amounts of which are determined by the hours 19 20 Also under the terms of said Bargaining Agreement and the governing documents of the Plaintiff 21 22 Funds, defendants agreed to pay liquidated damages for each delinquent payment, which become worked by employees of defendants, all as more fully set forth in said Bargaining Agreement.

23 part of the contributions. Defendants further agreed to pay interest on the combined contributions 24 and liquidated damages at the rates set by the Bargaining Agreement, from the day immediately 25 following the date that each such payment became due until paid in full, all as more fully set forth 26 27 28
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in said Bargaining Agreement.

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Facts Defendants failed to pay contributions reported by them as owing to the plaintiffs

under the Bargaining Agreement for work performed during the months of July 1, 2006 through August 31, 2007. Liquidated damages and interest have been incurred and are owing for the unpaid contributions owed for this period. Defendants further failed to pay unreported and unpaid amounts due on audit of the period January 2004 through February 2007. 14. Demand was made on defendants on behalf of plaintiffs, for payment of all

9 delinquent contributions, liquidated damages and interest due to the ERISA Plaintiff Funds, the 10 Union, and the Trust Funds. Defendant has failed and refused to make payment of any amounts 11 12 15. 13 14 ERISA Plaintiffs under ERISA § 515, 29 U.S.C. § 1145, and by failing to make such timely Defendants have a statutory duty to make the required payments timely to the due claimed herein, as required by the Bargaining Agreement.

15 payments has violated the law. 16 16. Defendants have a contractual duty under the Bargaining Agreement to timely

17 make the required contributions, liquidated damages and interest to the ERISA Plaintiffs and the 18 Funds, and to timely make the required payment of union dues to the Union. By failing to make 19 20 17. 21 22 herein was at all times, and still is, willful. Said refusal is unjustified and done with malicious Defendants' failure and refusal to timely submit the aforesaid payments as alleged such timely payments as required, defendants have breached said duty.

23 intent. Defendants' failure to timely make such payments in compliance with the Bargaining 24 Agreement has reduced the corpus of the ERISA Plaintiff funds and operating ability of the 25 Union, thereby impairing their ability to pay or provide benefits to members and beneficiaries, and 26 27 28
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thereby causing harm to all ERISA Plaintiffs funds and to the Union. Defendants' obligations pursuant to the Bargaining Agreement are continuing obligations; defendants continue to breach
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1 said Bargaining Agreement by failing and refusing to timely pay monies due thereunder to the 2 Plaintiff Funds and the Union. Plaintiffs are informed and believe, and therefore allege, that 3 4 5 6 7 18. Plaintiffs are without an adequate remedy at law and will suffer continuing and defendants will continue to willfully refuse to make said payments unless ordered by this Court to comply.

irreparable injury, loss and damage unless defendants are ordered specifically to perform all

8 obligations required on defendants' part to be performed under ERISA, 29 U.S.C. §§ 1101-1381, 9 the LMRA, 29 U.S.C. §§ 141-197, the Bargaining Agreement, and the governing documents of 10 the Plaintiffs Funds referred to therein, and are restrained from continuing to refuse to perform as 11 12 19. 13 14 set forth above, plaintiffs have a strong likelihood of success on the merits, there is the possibility This Court is authorized to issue injunctive relief based on traditional standard. As required thereunder.

15 that the Board of Trustees and the participants will suffer irreparable injuries, and the balance of 16 hardships and advancement of public interest favor plaintiffs. 17 18 19 20 a. 21 22 23 through judgment; (1) To the ERISA Plaintiffs, in accordance with ERISA Section For unpaid contributions for hours worked as specified above and thereafter Prayer WHEREFORE, Plaintiffs pray as follows: 1. For a judgment against defendants as follows:

24 502(g)(2)(A), 29 U.S.C. Section 1132(g)(2)(A) and the Bargaining Agreement; 25 26 27 28
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(2) b.

To the Union in accordance with the Bargaining Agreement.

Liquidated damages on late paid and unpaid contributions in an amount

provided for under the Bargaining Agreement and governing documents of the Plaintiff Funds and
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1 with respect to the ERISA Plaintiffs, ERISA Section 502(g)(2)(c), 29 U.S.C. Section 2 1132(g)(2)(c). 3 4 5 6 7 8 governing documents of the ERISA Plaintiffs and the ERISA Section 502(g)(2)(B), 29 U.S.C. Section 1132(g)(2)(B). 2. For any additional contributions and dues payable to plaintiffs and the Trust Funds c. Interest on late paid and unpaid contributions, dues and liquidated damages

which become a part thereof, at the rates set in accordance with the Bargaining Agreement, the

9 as third party beneficiaries of the Bargaining Agreement at time of judgment, plus interest and 10 liquidated damages as above provided and in accordance with the Bargaining Agreement, the 11 12 Section 502(g)(2), 29 U.S.C. Section 1132(g)(2). 13 14 3. ERISA Plaintiffs' reasonable attorneys' fees and costs of this action and for governing documents of the Plaintiff Funds, and with respect to the ERISA Plaintiffs, ERISA

15 auditors' costs, in accordance with ERISA § 502(g)(2)(D) and (E), 29 U.S.C. § 1132(g)(2)(D) and 16 (E); and in accordance with the collective bargaining agreement for all Bargained Plans, and with 17 LMRA Section 301, 29 U.S.C. § 185 for all plaintiffs. 18 19 20 the terms of the Bargaining Agreement and the governing documents referred to therein; 21 22 23 ERISA; and 24 (c) enjoining defendants from disposing of any assets until said terms have (b) enjoining defendants from violating the terms of those documents and of 4. For an order, (a) requiring that defendants comply with their obligations to plaintiffs under

25 been complied with, and from continuation or operating of defendants' business until said terms 26 27 28
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have been complied with.

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5. 6.

That the Court retain jurisdiction of this case pending compliance with its orders. For such other and further relief as the Court may deem just and proper.

Dated: September 28, 2007

SALTZMAN & JOHNSON LAW CORPORATION

By:________________/s/_______________ Muriel B. Kaplan Attorneys for Plaintiffs

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Case No.: C07-5045 MJJ