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Vincent Masino, Keith Loscalzo, Francisco Fernandez, Philip A. Faicco v. Integrated Structures Corp

March 30, 2011

VINCENT MASINO, KEITH LOSCALZO, FRANCISCO FERNANDEZ, PHILIP A. FAICCO, AND JAMES KILKENNY, AS TRUSTEES AND FIDUCIARIES OF THE PAVERS AND ROAD BUILDERS DISTRICT COUNCIL WELFARE, PENSION, ANNUITY AND APPRENTICESHIP,
SKILL IMPROVEMENT AND TRAINING FUNDS, (SLT)(SMG) PLAINTIFFS,
v.
INTEGRATED STRUCTURES CORP., DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge:

MEMORANDUM AND ORDER

Plaintiffs, the Trustees of the Pavers and Road Builders District Council Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Training Funds (collectively, the "Funds"), bring this action against defendant Integrated Structures Corp. ("Defendant"), seeking to recover $27,275.27 in delinquent contributions, plus $940.43 for previous late payments of contributions, owed to the Funds pursuant to a collective bargaining agreement. Defendant did not answer or otherwise respond to Plaintiffs' complaint and Plaintiffs now move for a default judgment. For the reasons stated below, Plaintiffs' motion for a default judgment is granted to the extent of awarding Plaintiff $27,242.27 for contributions owed for 2009, plus pre-judgment interest on this amount at the rate of 10% per annum; liquidated damages in the amount of $2,724.23; $940.43 in interest owed on late contributions paid prior to 2009; $1.072.00 in attorneys' fees and $350 in costs. However, unless Plaintiffs request otherwise, this Court will delay entering final judgment in this matter for thirty (30) days to permit Plaintiffs the opportunity to provide supplemental briefing with respect to the issue of whether the plan provided for liquidated damages of 20% at the times relevant to this action.

BACKGROUND

The Collective Bargaining Agreement

Defendant, a New York corporation, is a signatory to a collective bargaining agreement ("CBA") with the Highway, Road and Street Construction Laborers Local Union 1010 of the District Council of Pavers and Road Builders of the Laborers' International Union of North America, AFL-CIO (the "Union"). See Declaration of Charles R. Virginia in Support of Motion for Default Judgment, dated June 4, 2010, Ex. A. The CBA specifies the hourly wage that Defendant must pay the various classifications of covered employees, as well as the "Fringe Benefit" contributions that Defendant must pay the Funds for each hour worked by a covered employee.*fn1 For example, the CBA specifies that "laborers" are to be paid an hourly wage of $32.84, and "Fringe Benefits" totaling $21.05. Id., Art. VII, §8(2). The CBA further provides how the "Fringe Benefit" payment are to be allocated:

Welfare Fund: $9.15

Pension Fund: $6.85 Annuity Fund: $4.00 Training Fund:*fn2 $0.90 LECET:*fn3 $0.10 NYS Safety & Health: $0.05 Total Fringes: $21.05

Id., Art. IX, § 1(a). However, the amounts set forth above relate only to the first year of the contract. With respect to the remaining six years, the CBA states:

Effective on July 1, 2006, July 1, 2007 and July 1, 2008, the base rate of Wages plus Fringe Benefits for each classification set forth above shall be increased by 5%, with the amount of the increase allocated by the Union between Wages and Fringe Benefits in its sole and absolute discretion. Effective July 1, 2009 and July 1, 2010, the base rate of Wages plus Fringe Benefits for each classification set forth above shall be increased by 5.25%, with the amount of the increase allocated by the Union between Wages and Fringe Benefits in its sole and absolute discretion. Effective July 1, 2011, the base rate of Wages plus Fringe Benefits for each classification set forth above shall be increased by 5.5%, with the amount of the increase allocated by the Union between Wages and Fringe Benefits in its sole and absolute discretion.

Id., Art. VII, §8(2). The CBA also requires Defendant to pay "Supplemental Training Fund Contributions" of 60 cents per hour worked in the year beginning July 1, 2005; 65 cents per hour in the year beginning July 1, 2006, and 70 cents per hour beginning in July 1, 2007. Id., Art.

XV.

In order to permit the Funds to calculate the required contributions, the CBA provides that Defendant must submit monthly reports ("Employer Reports"). These Employer Reports are to contain "each employee's name, social security number, hours worked and job locations and such other information as may be required by the Funds." Id., Art. IX, § 1 (b) and (c). The CBA further provides that if Defendant fails to pay its contributions "when due":

[Defendant] shall pay, in addition to the amounts due and unpaid:

(a) annual interest at the rate of 10% per annum;

(b) costs and attorneys' fees;

(c) liquidated damages in the amount of ten ...


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