The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge.
Before the Court are the motion for summary judgment of plaintiffs
National Shopmen Pension Fund (the "Fund") and its Trustees, the
opposition of defendants Burtman Iron Works, Inc. ("Burtman") and Quality
Structures of America, Inc. ("Quality"), and plaintiffs' reply.
Plaintiffs bring this action pursuant to the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. § 1132(g)(2), which entitles
trustees to bring an action for or on behalf of a plan to collect
delinquent contributions. This action is also brought under Section 301
of the Labor Management Relations Act, 29 U.S.C. § 185, which
provides for enforcement of the terms of a collective bargaining
agreement. Plaintiffs seek to recover delinquent contributions, interest
thereon, liquidated damages, attorney's fees, audit fees, and other
costs. Plaintiffs also seek an injunction preventing defendants from
failing to furnish required contributions and remittance reports in a
timely fashion. Based on the record before the Court,
for summary judgment is granted in part and denied in part.
The National Shopmen Pension Fund is a joint labor-management fund that
provides pension, retirement, and related benefits to the eligible
employees of those employers who contribute to the Fund. Employers
contribute to the Fund pursuant to various collective bargaining
agreements with affiliated Shopmen's Local Unions of the International
Association of Bridge, Structural, Ornamental and Reinforcing Iron
Workers (the "Union"). Burtman is a Massachusetts corporation, and
Quality is a Rhode Island corporation. Both defendants conduct business
in the State of Massachusetts. The Union and Burtman have been parties to
and bound by a series of collective bargaining agreements since 1995, and
the Union has been the exclusive bargaining representative of Burtman's
production and maintenance employees. The two applicable agreements were
signed in 1995 and 1998. The agreements require Burtman to pay 71 cents
into the Fund "for each hour of pay paid to each employee. . . ."
In February 1999 Quality moved all of its operations from Rhode
Island to Burtman's Readville, Massachusetts facility. Plaintiffs and
defendants have jointly stipulated that Burtman and Quality constitute a
single employer, and therefore, they are jointly and severally liable for
any failure to contribute to the Fund. See Board of Trustees, Sheet Metal
Workers' Local Union 102 Health Benefit Fund v. Gibson Brothers, No.
820329, 1982 U.S. Dist. Lexis 10069, *8 (D.D.C. Oct. 27, 1982) (single
employer doctrine enunciated in Radio and Television Broadcast
Technicians Local Union 1264 v. Broadcast Services of Mobile, Inc.,
380 U.S. 255 (1965), provides the appropriate framework for determining
non-signatory's liability for obligations under the terms of signatory's
collective bargaining agreement).
The Fund hired Patrick Reid, a certified public accountant, to perform
a payroll review for the period 1996 through 2000. Reid's payroll review
showed that defendants failed to report to the Fund a number of hours
allegedly amounting to a delinquency of $48,805.77. It is also alleged
that defendants have breached the agreement by failing to remit
contributions or remittance reports (reports listing the hours for which
contributions are due) for Burtman's covered employees for January 2001
and for Quality's covered employees for January through March 2001. Based
on hours reported to the Fund, defendants claim $8,032.90 for January and
The motion raises six principal issues: (1) whether defendants are
obligated under the contract to make contributions on behalf of temporary
employees; (2) whether defendants are obligated under the contract to
make contributions for the hours of paid commuting time; (3) whether
defendants must contribute for part-time employee Jose Neal; (4) whether
defendants must contribute to the fund starting on the first day of
employment; (5) whether plaintiffs are abusing their discretion by not
waiving liquidated damages, attorney's fees, audit costs, and other
costs; and (6) whether plaintiffs are entitled to an injunction to
require defendants to submit contributions and remittance reports.
Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted
if the pleadings, depositions, answers to interrogatories, admissions on
affidavits show that there is no genuine issue of material
fact, and that the moving party is entitled to judgment as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
considering a motion for summary judgment, the "evidence of the
non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor." Id. at 255; see also Washington Post Co. v. United
States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir.
The non-moving party's opposition, however, must consist of more than
mere unsupported allegations or denials and must be supported by
affidavits or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party
must provide evidence that would permit a reasonable jury to find in the
non-moving party's favor. Laningham v. United States Navy, 813 F.2d 1236,
1242 (D.C. Cir. 1987). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Liberty
Lobby, 477 U.S. at 249-50 (citations omitted).
"Whether an agreement is clear on its face or ambiguous has a
direct bearing on the
appropriateness of summary judgment in contract disputes. Generally,
interpretation of a facially clear contract is considered a question of
law and is for the court." NRM Corp. v. Hercules, Inc., 758 F.2d 676,
682 (D.C. Cir. 1985) (quotations and citations omitted). In a matter
involving a contract, summary judgment is appropriate where the agreement
"admits of only one reasonable interpretation." United Mine Workers of
America 1974 Pension v. Pittston Co., 984 F.2d 469, 473 (D.C. Cir.
Section 502 of ERISA allows plan fiduciaries to sue employers in
federal court to recover delinquent payments to benefit plans.
29 U.S.C. § 1132. Section 515 of ERISA states that every "employer
who is obligated to make contributions to a multiemployer plan under the
terms of the plan or under the terms of a collectively bargained
agreement shall, to the extent not inconsistent with law, make such
contributions in accordance with the terms and conditions of such plan or
such agreement." 29 U.S.C. § 1145.
From approximately April 2000 through October 2000, defendants employed
production and maintenance workers who were hired through two temporary
employment agencies. According to defendants, 95% of these temporary
workers' time was devoted to work covered by the 1998 Agreement. (See
Memorandum in Support of Plaintiffs' Motion for Summary Judgment Ex. I at
p. 41-42.) However, defendants argue that they are not obligated to
contribute to the Fund for these employees.
Defendants claim that they do not owe contributions to the Fund because
the temporary employees are not common-law employees based on the
12-factor test articulated in Nationwide Mutual Insurance Company v.
Darden, 503 U.S. 318 (1992). As a result, defendants argue that at a
minimum, there are issues of fact as to whether the temporary employees
are common-law employees. Darden, however, is inapposite because it
addressed whether a person had standing under ERISA to bring an action
for benefits. Id. at 320-321. Determining whether temporary employees
hours are covered by the collective bargaining agreement is an issue of
contract interpretation, because
"employers must contribute to