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MASON TENDERS v. ABATEMENT INTERN./ADVATEX ASS'N

January 25, 2000

MASON TENDERS ET AL., PLAINTIFFS,
V.
ABATEMENT INTERNATIONAL/ADVATEX ASSOCIATES, INC., DEFENDANT.



The opinion of the court was delivered by: Stein, District Judge.

OPINION

The issue for determination is whether a general contractor can be held liable to a union and its multiemployer pension and welfare funds for payments due from a subcontractor. For the reasons set forth below, the answer in the context of the facts here is affirmative. Plaintiffs — several pension and welfare funds of the Mason Tenders Union — claim that the defendant general contractor is liable for these delinquent payments pursuant to an industry wide collective bargaining agreement with the union. All parties have cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, the general contractor's motion for summary judgment is denied and plaintiffs' motion for summary judgment is granted as to liability but denied as to damages.

I. Background.

Defendant Abatement International/Advatex Associates, Inc. ("Abatement") is a general contractor which, through its industry wide representative, Environmental Contractors Association, Inc., entered into a collective bargaining agreement ("Abatement CBA") with the relevant union, Mason Tenders District Council of Greater New York ("Mason Tenders" or the "Union"). Pursuant to Article II § 2 of the Abatement CBA, Abatement agreed not to utilize a subcontractor unless the subcontractor "agrees to be bound by the terms of this agreement and/or has an Agreement with the Union having jurisdiction over such work. . . ." Abatement further specifically agreed that it would "be responsible for the payment of wages, fringe benefits fund contributions, and working dues check-offs by such subcontractor."

During the period of the Abatement CBA, Abatement entered into subcontracting agreements with nonparty Diamond Construction & Maintenance, Inc. Diamond was a signatory to a separate collective bargaining agreement ("Diamond CBA") with the Union. The Diamond CBA obligated Diamond to make contributions to plaintiffs Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund, and Asbestos Training Program Fund (collectively "the Funds") and to contribute dues check-offs to the Union. The Funds are all multiemployer, labor-management trust funds established and maintained pursuant to collectively bargained agreements and thus qualify as "multi-employer plans" as defined by ERISA, 29 U.S.C. § 1002(37). Despite its contractual obligations, Diamond failed to make the full contributions to the employee pension fund, pay union dues check-offs or maintain documents recording the work performed by members of the Union.

On April 7, 1997, various parties — including several of the same parties to this action — sued Diamond and its affiliates. A judgment on consent was subsequently entered against the defendants to that litigation ordering delinquent payments and interest in the amount of $812,598.51 to the various funds bringing suit and $56,906.35 to the Union for dues check-offs.

Diamond's obligations remain unpaid and plaintiffs have brought this action to collect from Abatement the outstanding amounts, plus interest and fees.

II. Discussion.

A. Summary Judgment Standard

A court may grant summary judgment "only when the moving party demonstrates that `there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when `no reasonable trier of fact could find in favor of the nonmoving party.'" Allen, 64 F.3d at 79 (quoting Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)) (citations omitted).

B. Liability

Plaintiffs claim that Abatement owes them the unpaid benefit contributions and unpaid dues checkoffs pursuant to both ERISA and the contract entered into by Abatement.

1. Benefit Contributions.

ERISA § 503(f), 29 U.S.C. § 1132(f), grants this Court jurisdiction over any action by a plan's fiduciaries to enforce ERISA obligations, including the obligation ...


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