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IRON WORKERS DIST. COUNCIL & VICINITY WELFARE & PE

March 19, 1996

IRON WORKERS DISTRICT COUNCIL OF WESTERN NEW YORK AND VICINITY WELFARE AND PENSION FUNDS, et al., Plaintiffs,
v.
BUTLER FENCE CO., INC., Defendant.



The opinion of the court was delivered by: POOLER

 INTRODUCTION

 In this lawsuit under the Employee Retirement Income Security Act ("ERISA") and the Labor Management Relations Act ("LMRA"), plaintiffs Iron Workers District Council of Western New York and Vicinity Welfare and Pension Funds, et al. ("Iron Workers Fund") move for partial summary judgment against defendant Butler Fence Co., Inc. ("Butler"). Plaintiffs also seek an order compelling Butler to produce documents relating to the earnings of its employees. Because issues of fact control virtually every aspect of this case, summary judgment is denied. In addition, I deny plaintiffs' motion to compel discovery without prejudice to its renewal before the magistrate judge.

 BACKGROUND

 Butler is a Syracuse company that employs approximately 20 people full-time in the installation of commercial and residential fences. According to Neil R. Austin, Butler's president, the company occasionally employs workers who are members of the Iron Workers Local Union No. 60 (the "union") for specific jobs at the request of the project's general contractor, the property owner, or a union representative. Austin Aff. of 1/6/95, P 9. Butler's full-time employees, however, are not union members. Iron Workers Fund administers fringe benefit plans for the benefit of union members. According to Austin, when Butler occasionally employed union workers, the company paid them at the current union wage rate and made fringe benefit contributions on their behalf to Iron Workers Fund. Id.

 A. Collective bargaining agreements

 The union and the Construction Employers Association of Central New York ("Construction Association") negotiated collective bargaining agreements in 1983, 1986 and 1989 for the benefit of union workers. Butler is not a member of the Construction Association. The collective bargaining agreements require employers to contribute to Iron Workers Fund on behalf of union workers in amounts correlating to the number of hours worked. See Pl. Rule 7.1(f) Statement, Ex. A ("1983 Agreement"), Art. 9a & 9b; Ex. B ("1986 Agreement"), Art. 9a & 9b. Butler signed the 1983 and 1986 collective bargaining agreements as an individual employer but did not sign the 1989 agreement. Austin Aff. of 1/6/95, P 10.

 The parties sharply dispute the circumstances under which Butler signed the 1986 Agreement, which is central to this lawsuit. Butler President Austin contends that he signed the 1986 Agreement because union business agent Ronald McDermott visited Butler's offices and told Austin that the 1986 Agreement would cover only work related to a then current project along Route 81 in Mattydale. Austin Aff. of 1/6/95, P 6. Two Butler employees who were in the office during Ronald McDermott's 1986 visit generally corroborate Austin's version of events. Froio Aff. of 1/6/95, P 2; Singer Aff. of 1/6/95, P 2. In contrast, union officials deny ever stating that the 1986 Agreement was a limited project agreement. Ronald McDermott claims that his brother, union President Kevin McDermott, obtained Austin's signature on the 1986 Agreement and that neither the 1983 Agreement nor the 1986 Agreement was limited to the Route 81 project. R. McDermott Aff. of 12/13/94, PP 5, 8-9. Kevin McDermott contends that he was present when Austin signed the 1986 Agreement and that he told Austin the 1986 Agreement was not limited to the Route 81 project. K. McDermott Aff. of 12/13/94, PP 6-7. The 1986 Agreement itself does not limit its application to the Route 81 project.

 B. Audits by Iron Workers Fund

 The scope and termination date of the 1986 Agreement determines the extent of any fringe benefit contributions Butler owes Iron Workers Funds. Both the 1983 and 1986 agreements between the union and Butler incorporate Iron Workers Fund's trust agreements, which permit the fund to audit the books of contributing employers. See, e.g., Pl. Rule 7.1(f) Statement, Ex. F, Art. 9, § 1. Under this authority, Iron Workers Fund audited Butler's records for several projects during the period August 1985 through May 1989. According to this audit, Butler owed Iron Workers Fund $ 3,545.62. Id. Ex. N. By letter dated December 5, 1989, plaintiffs demanded payment from Butler of $ 5,364.16, which covered the delinquent contributions and applicable interest and penalties. Austin Aff. of 1/6/95, Ex. A. Butler never paid the alleged debt.

 The union also audited Butler's records for the period March 1985 through February 1986 and determined that Butler owed $ 122,168 in delinquent fringe benefit contributions. *fn1" By letter dated July 15, 1991, Iron Workers Fund demanded payment from Butler of $ 264,405.81, which included the delinquent contributions, interest and penalties. Pl. Rule 7.1(f) Statement, Ex. Q. According to plaintiffs, this audit did not include 16 projects for which they requested additional information. Id. Butler never supplied the information, and Iron Workers Fund has not audited Butler's records for the period March 1986 through May 1992.

 Iron Workers Fund commenced this lawsuit on November 30, 1992, to, among other things, collect the delinquent fringe benefit contributions already calculated and to compel Butler to produce its records for another audit. *fn2" Butler filed a counterclaim against the union stating that it fraudulently induced Butler to sign the 1986 Agreement and seeking indemnification if Butler was found liable under the contract for fringe benefit contributions. During discovery, Iron Workers Fund requested Butler's records in order to compute additional delinquent contributions. Butler refused the request. Although the parties met with Magistrate Judge Gustave J. Di Bianco regarding their dispute, he never ruled on the matter.

 Plaintiffs now seek to compel Butler to produce its books and records for discovery. Iron Workers Fund also seeks summary judgment regarding its right to audit Butler's records and Butler's obligation to pay the funds delinquent contributions. Finally, plaintiffs seek to dismiss Butler's counterclaim against the union. Butler ...


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