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February 11, 1998

UPSTATE NEW YORK BAKERY DRIVERS AND INDUSTRY PENSION FUND, by Kathleen F. Sweeney as administratrix, Plaintiff,

The opinion of the court was delivered by: SCULLIN


 Plaintiff, Upstate New York Bakery Drivers and Industry Pension Fund, brings an action against Defendant, Colony Liquor Distributors, Inc., pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). See 29 U.S.C. § 1145. In this action, Plaintiff brings one claim under § 515 of ERISA seeking $ 12,610 in fringe benefit contributions allegedly owed by the Defendant for the period of August 19, 1990 through December 31, 1994. Additionally, the Plaintiff seeks (1) interest on the delinquent contributions equal to 2% per month, (2) liquidated damages equal to the greater of 2% per month or 20% of the entire amount, and (3) costs, fees of collection, and attorney's fees.

 Presently before the Court is the Plaintiff's motion for summary judgment on its claim pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant has cross-moved pursuant to Rules 16(f) and 37(b)(2) of the Federal Rules of Civil Procedure to dismiss the complaint, or in the alternative preclude the testimony of Robert E. Kilfoyle.

 The Court held oral argument in this matter on July 1, 1997. On that date the Court granted the Plaintiff partial summary judgment, finding that there was no issue of material fact as to the Defendant's liability for delinquent contributions, with the exception of the vacation contributions claimed from the first relevant collective bargaining agreement in effect from August 19, 1990 to December 31, 1991. *fn1" Accordingly, Plaintiff is entitled judgment in the amount of $ 10,494.00 in unpaid contributions, plus statutory interest and liquidated damages. Additionally, for the reasons stated on the record on that date, the Court denied the Defendant's cross-motions. The Court reserved on whether the Plaintiff is entitled to summary judgment on the allegedly delinquent contributions owed from several workers' vacation leave taken during the period of time from August 19, 1990 to December 31, 1991. The Court will first address this remaining issue, then address the Plaintiff's application for attorney's fees.


 The Plaintiff fund is a multi-employer and employee benefit plan as defined by ERISA, 29 U.S.C. §§ 1002(3) and (37). At all times relevant to the present action, the Defendant was a party to successive collective bargaining agreements ("CBAs") with the Bakery, Laundry, & Beverage Driver's Local union No. 669. Pursuant to these agreements, the Defendant was required to make contributions on behalf of its classified employees to various employee benefit trust funds. Article XXII of the CBA in dispute specified:

During the period from January 1, 1989 through December 31, 1990, the Company agrees to pay into Upstate New York Bakery Drivers and Industry Pension Fund the sum of Thirty-four ($ 34.00) Dollars per week for each employee in the collective bargaining unit who works three (3) or more days in a given work week. During the period from January 1, 1991 through December 31, 1991, the Company's contribution to the Industry Pension Fund shall be the sum of Thirty-five ($ 35.00) Dollars per week for each such employee

 (emphasis added). On March 20, 1995, the Plaintiff's agent, Robert E. Kilfoyle, C.P.A., conducted an audit of the Defendant's payroll records and determined, in relevant part, that the Defendant had failed to remit pension contributions for certain employees who were on paid vacation between August 19, 1990 and December 31, 1991. The amount of delinquent contributions for this time period is alleged to be $ 2,116.



 Under Rule 56(c), summary judgment is warranted if, when viewing the evidence in a light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). To survive a motion for summary judgment the non-movant must do more than present evidence that is merely colorable, conclusory, or speculative. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-movant must offer evidence that demonstrates that there are issues of fact that must be decided by a fact finder because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).

 The present dispute centers solely on the interpretation of an Article XXII of the collective bargaining agreement. An employer's duty to contribute rests on the plain meaning of the provisions in the collective bargaining agreement regardless of the subjective intent of the parties. See Central States Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., 861 F. Supp. 1402, 1409 (N.D. Ill. 1994) (citing Central States SE & SW Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1149 (7th Cir. 1989)). In Central States, a district court faced the same issue that is presently before the Court: whether an employer was required to contribute to a union trust fund for vacation days taken by regular employees. See id. The CBA in question provided that the employer had to contribute a certain amount for regular employees for each day "worked or compensated." Id. The court held that the plain language of the agreement required contribution for vacation days because even though vacations are not days on which regular employees "work," they are days for which regular employee's are "compensated." Id.

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