Free Complaint - District Court of California - California

Case 3:07-cv-04995-CRB

Document 1

Filed 09/27/2007

Page 1 of 8

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 DUN ENGINEERING SERVICES, INC., a California Corporation and MARK THOMAS 26 JONES, an Individual, 27 28
P:\CLIENTS\OE3CL\Dun Engineering\Pleadings\Complaint to Compel Audit\C07-4995 JLComplaint 092507.DOC

Case No.: C07-4995 JL COMPLAINT TO COMPEL AUDIT

Plaintiffs,

Defendants.
-1COMPLAINT TO COMPEL AUDIT

Case No.: C07-4995 JL

Case 3:07-cv-04995-CRB

Document 1

Filed 09/27/2007

Page 2 of 8

1 2 3 4 5 6 7 1.

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 Russ " 11 12 act on behalf of all Trustees. 13 14 2. Operating Engineers Local Union No. 3 of the International Union of Operating Burns are Co-Chairmen of the Joint Boards of Trustees of the ERISA Plaintiffs with authority to

" ") 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. DUN ENGINEERING SERVICES, INC. ( "Dun) and MARK THOMAS JONES "

18 ( "Jones are employers by virtue of ERISA § 3(5), 29 U.S.C. § 1002(5), and NLRA § 2(2), 29 ") 19 20 are referred to herein as" Defendants ". 21 22 23 4. Jurisdiction Jurisdiction exists in this Court over the claims asserted by the ERISA Plaintiffs by U.S.C. § 152(2), and Mark Thomas Jones personally guaranteed payment of fringe benefits. They

24 virtue of ERISA § 502, 29 U.S.C. § 1132, in that the ERISA Plaintiffs seek to enforce the 25 provisions of ERISA and the terms of their plans, seek to enjoin the acts and practices which 26 27 28
P:\CLIENTS\OE3CL\Dun Engineering\Pleadings\Complaint to Compel Audit\C07-4995 JLComplaint 092507.DOC

violate ERISA, seek equitable relief to redress such violations, and seek all other appropriate relief under ERISA.
-2COMPLAINT TO COMPEL AUDIT

Case No.: C07-4995 JL

Case 3:07-cv-04995-CRB

Document 1

Filed 09/27/2007

Page 3 of 8

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 all of the events and omissions giving rise to plaintiffs' claims occurred in the County of San The basis for assignment of this action to this court's San Francisco Division is that Intradistrict Assignment

23 Francisco, where the ERISA Plaintiff funds and union dues, were administered during the period 24 claimed herein, and where defendants therefore failed to fulfill its statutory and contractual 25 obligations to the plaintiffs. 26 27 28
P:\CLIENTS\OE3CL\Dun Engineering\Pleadings\Complaint to Compel Audit\C07-4995 JLComplaint 092507.DOC

/// ///
-3COMPLAINT TO COMPEL AUDIT

Case No.: C07-4995 JL

Case 3:07-cv-04995-CRB

Document 1

Filed 09/27/2007

Page 4 of 8

1 2 3 4 5 6 7 10.

Bargaining Agreement The Union and defendants entered into a collective bargaining agreements

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 between the Union and the Associated General Contractors of California, Inc., which is incorporated into the Independent Northern California Construction Agreement, and into the Private Work Agreement for Fresno

"Fresno to which Dun is signatory. That Agreement is referred to herein as the "Bargaining "), 8 Area ( 9 Agreement," and the ERISA Plaintiffs and Trust Funds are third party beneficiaries of those 10 Bargaining Agreements. 11 12 Stabilization Trust Fund, Business Development Trust Fund, and Heavy and Highway Committee, 13 14 together referred to herein as "Trust Funds, are funds for which plaintiff Boards of Trustees are the " 11. The Operating Engineers Market Preservation Fund, Operating Engineers Industry

15 assignees of monies due under the Bargaining Agreement. 16 12. MARK THOMAS JONES is a guarantor for plaintiffs' claim, pursuant to the terms

17 of the Independent Northern California Construction Agreement. 18 19 20 binding on defendants, defendants are required to submit monthly reports of hours worked by its 21 22 employees, and to regularly pay to the Plaintiff ERISA Funds, to the Union for union dues, and to 13. Under the terms of said Bargaining Agreements and of the governing documents of

the ERISA Plaintiffs which documents are incorporated into the Bargaining Agreement and made

23 the Trust Funds, certain sums of money, the amounts of which are determined by the hours 24 worked by employees of defendants, all as more fully set forth in said Bargaining Agreement. 25 Also under the terms of said Bargaining Agreement and the governing documents of the Plaintiff 26 27 28
P:\CLIENTS\OE3CL\Dun Engineering\Pleadings\Complaint to Compel Audit\C07-4995 JLComplaint 092507.DOC

Funds, defendants agreed to pay liquidated damages for each delinquent payment, which become part of the contributions. Defendants further agreed to pay interest on the combined contributions
-4COMPLAINT TO COMPEL AUDIT

Case No.: C07-4995 JL

Case 3:07-cv-04995-CRB

Document 1

Filed 09/27/2007

Page 5 of 8

1 and liquidated damages at the rates set by the Bargaining Agreements, from the day immediately 2 following the date that each such payment became due until paid in full, all as more fully set forth 3 4 5 6 7 the ERISA Plaintiffs which documents are incorporated into the Bargaining Agreements and made binding on defendants, defendants are required to permit an authorized Trust Fund representative or incorporated into said Bargaining Agreements. 14. Under the terms of said Bargaining Agreements and of the governing documents of

8 to examine such records of defendants as is necessary to determine whether defendants have made 9 full payment of all sums owed to the Plaintiffs, all as more fully set forth in said governing 10 documents, as amended, and incorporated into the Bargaining Agreements. 11 12 15. 13 14 plaintiffs, to schedule an audit and provide records for examination pursuant to the terms of the On several occasions, written demands were made on defendants on behalf of Facts

15 Collective Bargaining Agreements and the governing documents of the ERISA Plaintiffs, for the 16 period January 1, 2004 through date of audit. 17 16. Defendants have refused and continue to refuse to provide records and to permit an

18 authorized representative of the Plaintiffs to examine defendants' records as are necessary to 19 20 period January 1, 2004 through date of audit. 21 22 17. Defendants have a statutory duty to make required payments timely to the ERISA determine whether defendants have made full payment of all sums owed to the plaintiffs for the

23 Plaintiffs under ERISA § 515, 29 U.S.C. § 1145. 24 18. Defendants' failure and refusal to provide records and to permit examination of its

25 records as alleged herein to determine if defendants have met their obligations was at all times, 26 27 28
P:\CLIENTS\OE3CL\Dun Engineering\Pleadings\Complaint to Compel Audit\C07-4995 JLComplaint 092507.DOC

and still is, willful. Defendants continue to breach said Bargaining Agreements, and the governing documents of the ERISA Plaintiffs which documents are incorporated into the Bargaining
-5COMPLAINT TO COMPEL AUDIT

Case No.: C07-4995 JL

Case 3:07-cv-04995-CRB

Document 1

Filed 09/27/2007

Page 6 of 8

1 Agreements and made binding on defendants, by failing to permit examination of its records as 2 alleged. Said refusal is unjustified and done with malicious intent. 3 4 5 6 7 Funds, and to timely make the required payment of union dues to the Union. Defendants failed to make timely contributions for the periods August 2001-December 2001, December 2002-January 19. Defendants have a contractual duty under the Bargaining Agreements to timely

make required contributions, liquidated damages and interest to the ERISA Plaintiffs and the

8 2003, June 2003, August 2004-September 2004, and December 2003-July 2007. By failing to 9 make such timely payments as required, defendants have breached said duty, incurring liquidated 10 damages and interest, which defendants have failed and refused to pay. 11 12 irreparable injury, loss and damage unless defendants are ordered specifically to perform all 13 14 obligations required on defendants' part to be performed under ERISA, 29 U.S.C. §§ 1101-1381, 20. Plaintiffs are without an adequate remedy at law and will suffer continuing and

15 the LMRA, 29 U.S.C. §§ 141-197, the Bargaining Agreements, and the governing documents of 16 the Plaintiffs Funds referred to therein, and are restrained from continuing to refuse to perform as 17 required thereunder. 18 19 20 that the Board of Trustees and the participants will suffer irreparable injuries, and the balance of 21 22 23 24 25 26 27 28
P:\CLIENTS\OE3CL\Dun Engineering\Pleadings\Complaint to Compel Audit\C07-4995 JLComplaint 092507.DOC

21.

This Court is authorized to issue injunctive relief based on traditional standard. As

set forth above, plaintiffs have a strong likelihood of success on the merits, there is the possibility

hardships and advancement of public interest favor plaintiffs. Prayer WHEREFORE, Plaintiffs pray as follows: 1. For an order requiring defendants to provide certain records and to submit to an

audit of such records by a date certain for the period January 1, 2004 through date of audit; and ///
-6COMPLAINT TO COMPEL AUDIT

Case No.: C07-4995 JL

Case 3:07-cv-04995-CRB

Document 1

Filed 09/27/2007

Page 7 of 8

1

2.

For judgment against defendants in favor of the ERISA Plaintiffs and the Union, in

2 an amount equal to: 3 4 5 6 7 through date of audit pursuant to ERISA § 502(g)(2)(A), 29 U.S.C. § 1132(g)(2)(A); (1) To the ERISA Plaintiffs, in accordance with ERISA Section a. Any unpaid contributions, due at time of Judgment, including any

contributions determined as due by said audit of defendants' records for the period January 1, 2004

8 502(g)(2)(A), 29 U.S.C. Section 1132(g)(2)(A) and the Bargaining Agreements; 9 10 11 12 (2) 13 14 on the aforementioned unpaid and late paid contributions, in accordance with the Bargaining Liquidated damages provided for under the Bargaining Agreements b. (2) To the Union, in accordance with the Bargaining Agreements;

Liquidated damages in an amount equal to the greater of: (1) Interest on the unpaid contributions, or

15 Agreements, the governing documents of the ERISA Plaintiffs, and with respect to the ERISA 16 Plaintiffs, ERISA Section 502(g)(2), 29 U.S.C. Section 1132(g)(2). 17 c. Interest on any unpaid and late paid contributions and dues, and on

18 liquidated damages, at the rates and in accordance with the Bargaining Agreements, the governing 19 20 1132(g)(2)(B), with respect to the ERISA Plaintiffs, and the applicable legal rate with respect to 21 22 23 dues and where otherwise appropriate. 3. For any additional contributions and dues payable to plaintiffs and the Bargained documents of the ERISA Plaintiffs, ERISA Section 502(g)(2)(B), 29 U.S.C. Section

24 Plans as third party beneficiaries of the Bargaining Agreements at time of judgment, plus interest 25 and liquidated damages as above provided and in accordance with the Bargaining Agreements, the 26 27 28
P:\CLIENTS\OE3CL\Dun Engineering\Pleadings\Complaint to Compel Audit\C07-4995 JLComplaint 092507.DOC

governing documents of the ERISA Plaintiffs and, with respect to the ERISA Plaintiffs, ERISA Section 502(g)(2), 29 U.S.C. Section 1132(g)(2).
-7COMPLAINT TO COMPEL AUDIT

Case No.: C07-4995 JL

Case 3:07-cv-04995-CRB

Document 1

Filed 09/27/2007

Page 8 of 8

1

4.

ERISA Plaintiffs' reasonable attorneys' fees and costs of this action in accordance

2 with ERISA § 502(g)(2)(D), 29 U.S.C. § 1132(g)(2)(D); and in accordance with the collective 3 4 5 6 7 5. For an order, (a) requiring that defendants comply with their obligations to plaintiffs under bargaining agreements for all Bargained Plans, and with LMRA Section 301, 29 U.S.C. § 185 for all plaintiffs.

8 the terms of the Bargaining Agreements and the governing documents referred to therein; 9 10 ERISA; and 11 12 been complied with, and from continuing or operating of defendants' business until said terms have 13 14 15 16 17 18 Dated: September 25, 2007 19 20 21 22 23 24 25 26 27 28
P:\CLIENTS\OE3CL\Dun Engineering\Pleadings\Complaint to Compel Audit\C07-4995 JLComplaint 092507.DOC

(b)

enjoining defendants from violating the terms of those documents and of

(c)

enjoining defendants from disposing of any assets until said terms have

been complied with. 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.

SALTZMAN & JOHNSON LAW CORPORATION

By:_________________/s/______________ Muriel B. Kaplan Attorneys for Plaintiffs

-8COMPLAINT TO COMPEL AUDIT

Case No.: C07-4995 JL