The opinion of the court was delivered by: John T. Curtin United States District Judge
There are three outstanding motions currently before the court: (1) Plaintiff's motion for contempt for defendant's failure to cooperate with an audit of its payroll records (Item 48); (2) Plaintiffs' motion for summary judgment seeking delinquent fringe benefit contributions (Item 69); and (3) Defendant's cross motion for summary judgment seeking an order that it is not liable for those contributions (Item 89). Oral argument was heard on September 11, 2006.
Plaintiffs commenced this action on February 5, 2001 pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1132 ("ERISA") (Item 1). Plaintiffs ("Funds") are jointly administered, multi-employer labor-management trust funds established and maintained pursuant to a collective bargaining agreement ("CBA") and the Taft-Hartley Act, 29 U.S.C. § 186, and are employee benefit plans within the meaning of ERISA. Defendant is a contractor whose primary work consists of the repair and/or maintenance of road stripes. In their complaint, plaintiffs sought an audit of defendant's payroll records to determine defendant's compliance with its obligation to remit employee fringe benefit contributions pursuant to a CBA with the Laborers International Union of North America, Local 210 ("Union"). On August 15, 2002, plaintiff filed a motion to compel the audit and additional discovery (Item 20). At that time, defendant argued that it was only obligated to remit fringe benefit payments on behalf of those employees who signed and filed union authorization cards, and that plaintiffs' audit should thus be limited to those employees for whom a signed authorization card was filed. In an order dated February 2, 2004, the court granted the motion to compel and directed that the audit be conducted for all employees without regard to the filing of authorization cards (Item 43). In that order, the court also stated that "[i]f, during the audit process, it is discovered that deductions were not made for employees covered by the CBA, defendant can present as a defense the argument that the employees failed to sign and file the appropriate authorization for the payment of fringe benefits." Id., p. 3.
The audit commenced on May 3, 2004 but was not completed because a dispute arose as to the production of certain payroll documents. On November 5, 2004, plaintiffs filed the motion for contempt for defendant's failure to comply with the audit (Item 48). In response to the motion, defendant argued that the CBA had been terminated in 2002 and that all relevant records had been provided to the auditor (Item 54). The parties appeared for a hearing on September 28, 2005, at which time it was agreed that the CBA had been terminated in 2002 and that the only records at issue were from 1995 and 1996. The parties agreed to make arrangements for plaintiffs' auditor to examine the remaining records, and the audit was completed by February 2006 (Item 66).
Following the completed audit, on March 27, 2006, plaintiffs filed a motion for summary judgment seeking delinquent fringe benefit payments (Item 69). On May 15, 2006, defendant filed its response to the motion and cross-moved for summary judgment, renewing its argument that it was not obligated to remit fringe benefit payments for those employees who had not signed authorization cards (Items 79-89). Plaintiffs filed a reply/response on June 5, 2006 (Items 90-95). The court heard oral argument by telephone on September 11, 2006.
In their Statement of Undisputed Facts in support of their motion for summary judgment, plaintiffs state that defendant was bound by CBAs with the Union from 1993 through 2002 (Item 69, Attachment 1, ¶ 3). Relevant sections of the CBA from 1996 to 1999*fn1 provide as follows:
ARTICLE XV - PENSION, WELFARE, S.U.B, EDUCATION AND TRAINING FUNDS
1.(a). The Employer hereby agrees to contribute the amounts hereinafter provided for in Article XXII of this Agreement to Laborers Local 210 Pension, Welfare, Supplementary Unemployment Benefits, Education and Training Funds (Hereinafter singularly and collectively referred to as "Fund') for each actual hour worked by employees covered by this Agreement. . . . . . .
1. The Employer shall deduct from the basic wage rate of employees covered by this Agreement, the amounts hereinafter set forth in Article XXII, for each actual hour worked by such employees.
2. No deductions shall be made for any such employee unless the employee has deposited with the Employer his copy of an executed authorization form . . . .
1. A Laborer shall be paid for the entire day at the rate applicable to the highest classification in ...