The opinion of the court was delivered by: Denise Cote, District Judge
Plaintiffs brought this action alleging that defendant failed to make required contributions to certain benefit funds.*fn1
On August 15, 2008, plaintiffs filed a motion for summary judgment. That motion was fully submitted on December 5, 2008. For the reasons that follow, the motion is granted.
Plaintiffs are the trustees of the 1199/SEIU Greater New York Benefit Fund ("Benefit Fund"), the 1199/SEIU Greater New York Pension Fund, the 1199/SEIU Greater New York Education Fund, the 1199/SEIU Greater New York Child Care Fund, the 1199/SEIU Greater New York Job Security Fund, and the 1199/SEIU Greater New York Worker Participation Fund (collectively the "Funds"). The Funds are established pursuant to § 302(c)(5) of the Labor-Management Relations Act ("LMRA"), and are employee benefit funds under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(2)(3). The Funds provide medical, retirement, child care, education, and other benefits to participants in the Funds and their beneficiaries.
Defendant Kingsbridge Heights Rehabilitation Care Center ("Kingsbridge") is a nursing home. Until April 2005, Kingsbridge and 1199/SEIU United Health Care Workers, East ("1199") were parties to a collective bargaining agreement ("CBA") that set forth terms and conditions of employment for certain Kingsbridge employees. On June 8, 2006, Kingsbridge, 1199, and the National Labor Relations Board ("NLRB") entered into an agreement (the "Agreement"). The Agreement required Kingsbridge to, inter alia, "make timely monthly contributions to the benefit, pension, education, job security, worker participation and child care funds as they become due." These contributions are calculated using a percentage of wages, and they were due on the tenth day of the following month.
Kingsbridge made the following payments pursuant to the Agreement. It paid the contributions that were due on July 10, 2006 with checks dated October 9, 2006; the August 10, 2006 contributions with checks dated October 31, 2006; the September 10, 2006 contributions with checks dated November 13, 2006; the October 10, 2006 contributions with checks dated November 20, 2006; and the November 10, 2006 contributions with checks dated November 27, 2006. Kingsbridge paid the December 10, 2006 contributions for the Benefit Fund only with checks dated December 16, 2006, but did not make contributions to any of the other Funds until August 13, 2008. Kingsbridge also did not make any of the January 10, 2007 contributions until August 13, 2008. Kingsbridge paid the February 10, 2007 contributions with checks dated February 9, 2007 that were received by the Funds on March 30, 2007 and April 4, 2007; the March 10, 2007 contributions with checks dated April 10, 2007 that were received by the Funds on May 3, 2007; the April 10, 2007 contributions with checks dated April 10, 2007 that were received by the Funds on June 27, 2007; the May 10, 2007 contributions with checks dated May 10, 2007 that were received by the Funds on July 27, 2007; the June 10, 2007 contributions with checks dated June 10, 2007 that were received by the Funds on August 8, 2007; and it made contributions for the wages earned in June 2007 on or about July 14, 2008.
At the time the Funds' moving brief for the instant motion was filed, in August 2008, it contended that Kingsbridge had made no contributions for wages earned from July 2007 through February 2008 that were due under the Agreement. On November 21, 2008, Kingsbridge paid $381,547.23 to the Funds, which it contends satisfies the entire amount that was still due. Thus, in its opposition, filed in November 2008, Kingsbridge contends that it has now paid all contributions that it considers are due to the Funds.
On November 5, 2007, the Benefit Fund terminated medical benefits for Kingsbridge employees. From February 20, 2008, to August 20, 2008, 1199 went on strike against Kingsbridge. If Kingsbridge makes the payments to the Benefit Fund for the wages earned from November 2007 through February 2008, then benefits will be reinstated retroactively to Kingsbridge employees for the time period that benefits were terminated, and they will be able to submit for reimbursement medical bills incurred from November 5, 2007 through February 20, 2008.
Kingsbridge's failure to make timely payments under the Agreement was one of the subjects of an unfair labor practices dispute before the NLRB. On December 24, 2008, the NLRB adopted as modified an Administrative Law Judge's June 30, 2008 Order which found that Kingsbridge had violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act by failing to make timely payments to the Funds since June 2005, and by failing to make any payments for certain months, including no payments since August 2007. Kingsbridge Heights Rehabilitation and Care Center, 353 N.L.R.B. No. 69, 2008 WL 5382911, at *1 (Dec. 24, 2008). The NLRB's order required Kingsbridge to "[p]ay into the Union's Funds those contributions that it failed to make on behalf of its unit employees . . . and continue to make the required timely contributions until such time as it bargains with the Union in good faith to an agreement or the parties reach an impasse." Id.
The Funds sought to audit Kingsbridge on February 7, 2008, but the scheduled audit did not occur. The Funds' Declarations of Trust ("Declarations") give the Funds the power to conduct payroll audits of participating employers when the Trustees deem an audit necessary or advisable. Such payroll audits are conducted periodically by the Funds, and if the audit shows that Kingsbridge overpaid in contributions, the Funds will credit Kingsbridge with the amount of overpayment. Before February 7, 2008, the most recent audit covered the period up through January 1, 2004. Kingsbridge, in its opposition to the instant motion, agreed to allow an audit "subject to appropriate safeguards . . . to protect confidential information of Kingsbridge's non-Union employees." As such, following a January 23, 2009 telephone conference, at which time the parties addressed those concerns, the Court ordered an audit to proceed on January 27, 2009. Following further court proceedings, the audit began on January 29, 2009.
The Declarations also provide that employers are to pay 12% interest on delinquent Funds contributions. Additionally, the Declarations state that in any successful action to collect delinquent contributions, in addition to the principal and interest on the delinquent contributions, the Funds are entitled to receive an amount equal to the greater of the interest or 20% of the unpaid contributions.
Upon this motion being fully submitted, the following issues are still in dispute:
1) Kingsbridge alleges that the Funds' calculations of the amount due to the Pension Fund pursuant to the Agreement contain errors based on the payroll figures;
2) Kingsbridge contends that it was not required to make contributions to the Benefit Fund (and the Education Fund, Child Care Fund, Job Security Fund, and Workers Participation Fund) for the period from November 5, 2007 to February 20, 2008, when the Funds had terminated benefits;
3) Kingsbridge contends that the Funds are using the wrong rates to calculate contributions for the ...