United States District Court, District of Columbia
SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND, et al., Plaintiffs,
TNUZEG HOLDINGS, LLC, Defendant.
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
Trustees of the Service Employees International Union
National Industry Pension Fund (collectively, the Fund) seek
delinquent pension fund contributions from Tnuzeg Holdings,
LLC (doing business as New Vista Nursing and Rehabilitation
Center, or New Vista). The Fund alleges that New Vista owes
$194, 390.51 in delinquent contributions, interest, and
liquidated damages for the period between July 2013 and April
2017, plus additional pre- and post-judgment interest and
attorneys' fees and costs. New Vista contends that the
Fund's calculations are unreliable, but it fails to
provide a factual or legal basis for its contention or to
counter the Fund's demonstration of its calculations.
Because the Fund satisfactorily identifies the underlying
obligation and the monies owed, there is no genuine dispute
on any material fact. The Court will grant summary judgment
to the Fund.
Fund, an “employee benefit plan” and “a
multiemployer plan” under the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. § 1002,
was established and maintained to provide pension benefits to
eligible employees of contributing employers. New Vista, part
of a group of nursing homes, is one such contributing
employer. In the present action, the Fund and its trustees
allege that New Vista owes unpaid contributions, interest,
and liquidated damages as required under the controlling
trust agreements and collective bargaining agreements, in
violation of ERISA and the Labor Management Relations Act of
1947 (LMRA), 29 U.S.C. § 185(a).
the Fund seeks unpaid contributions from New Vista for the
period between July 2013 and April 2017. See Ex. 11,
Pls.' Mot. for Summ. J. (Mot.) [Dkt. 14], Decl. of Kisha
Smith (Smith Decl.) [Dkt. 14-11] ¶ 27. Deriving eligible
work hours by covered employees from monthly remittance
reports submitted by New Vista, the Fund calculates that New
Vista underpaid $133, 925.29 in total contributions for the
period of July 2013 through April 2017, and that New Vista
owes additional interest for late payments and underpayments
as well as liquidated damages for underpaid or late
contributions. In total, the Fund alleges that New Vista owes
$194, 390.51 for the period July 2013 through April 2017,
plus additional interest since that month, and attorneys'
fees and costs for this litigation. Id. ¶¶
Vista has been signatory to a series of contracts that
require it to contribute to the Fund. See Id.
¶¶ 6-17. New Vista signed a memorandum of agreement
(2008 MOA) with the Union dated July 17, 2008 by which it
agreed to a master collective bargaining agreement known as
the “Tuchman Agreement.” Id. ¶ 6;
see also Ex. 1, Mot., Tuchman Agreement [Dkt. 14-1].
At least by then, SEIU Local 1199 United Health Care Workers
East was recognized by New Vista as the exclusive bargaining
representative for all employees it employed excluding office
clerical employees, supervisors, watchmen, and guards.
See Compl. [Dkt. 1] ¶ 9. The Tuchman Agreement
was in effect from March 13, 2008 (before New Vista became a
signatory through the 2017 MOA) to February 28, 2013.
Id. ¶ 10. As part of a group of nursing homes,
New Vista underwent interest arbitration with the Union in
2012 to decide the terms for a new collective bargaining
agreement. See Id. ¶ 11; see also
Smith Decl. ¶ 7; Ex. 3, Mot., Arbitration Decision [Dkt.
14-3]. The arbitrator's award extended the term of the
Tuchman Agreement from March 1, 2012 through June 30, 2016
with amendments. See Arbitration Decision at 14-15.
On March 20, 2017, New Vista signed a memorandum of agreement
with the Union, which renewed the Tuchman Agreement through
December 31, 2020. See Smith Decl. ¶ 8; see
also Ex. 4, Mot., 2017 MOA [Dkt. 14-4].
Tuchman Agreement has required New Vista to contribute
periodically to the Fund on behalf of all covered employees
and to comply with the Fund's collections policy (the
Collection Policy) which imposes interest on any late or
unpaid contributions (delinquent contributions), additional
liquidated damages for delinquent contributions if a lawsuit
must be filed to collect the delinquencies, and
attorneys' fees and court costs incurred in collecting
amounts owed. See Tuchman Agreement. As relevant
here, the base contribution rate was 2.75% of gross monthly
earnings for all bargaining unit employees. See Id.
¶ 30.3. New Vista also was bound to an agreement
establishing the Fund (the Trust Agreement), and to the
Fund's Collection Policy for delinquent contributions.
See id. ¶ 30.4; see also Ex. 5, Mot.,
Trust Agreement [Dkt.14-5]; Ex. 6, Mot., Collection Policy
[Dkt. 14-6]. The Tuchman Agreement specifically states:
The Employer hereby agrees to be bound by the provisions of
the Agreement and Declaration of Trust establishing the Fund,
as it may from time to time be amended, and by all
resolutions and rules adopted by the Trustees pursuant to the
powers delegated to them by that agreement, including
collection policies, receipt of which is hereby
Agreement ¶ 30.4 (emphasis added).
Collection Policy provides that a delinquent employer is
liable for interest at a rate of 10 percent (10%) per annum,
plus liquidated damages at a rate of 20 percent (20%) after
the commencement of legal action, plus attorneys' fees
and costs. See Collection Policy § 5.
New Vista's obligations to the SEIU Pension Fund are
governed by the Pension Protection Act of 2006 (PPA), 29
U.S.C. § 1085. That statute requires a pension fund
facing certain funding deficiencies to issue notices of
“critical status” to contributing employers and
to institute a “rehabilitation plan” that may
adjust benefits and/or contributions or assess surcharges to
mitigate a fund's financial instability. 29 U.S.C. §
1085(a)(2), (e)(1), (e)(7). Beginning January 1, 2009, and in
January of every year thereafter through 2017, the Fund was,
pursuant to these statutory requirements, determined to have
such funding deficiencies and to be in “critical
status.” See Ex. 7, Mot., Notices of Critical
Status [Dkt. 14-7]. The Fund duly issued the required notices
of critical status each April in 2009 through 2017. See
Id. at 3; see also Smith Decl. ¶ 18. Also
as required under the PPA, the Fund adopted a rehabilitation
plan on November 25, 2009, under which New Vista was required
to pay a surcharge on delinquent contributions; initially the
rate for this surcharge was 5% and it rose to 10% effective
January 1, 2010. See Ex. 8, Mot., Rehabilitation
Plan Notice [Dkt. 14-8] at 2.
renewed Tuchman Agreement obligated New Vista to remit
supplemental contributions as well (the Preferred Schedule).
See Arbitration Decision at 19. Pursuant to the
Preferred Schedule, New Vista was obligated to remit
supplemental contributions at a rate of 37.6% of base
contributions due beginning on July 1, 2013, 48.3% beginning
July 1, 2014, and 59.8% beginning July 1, 2015. Id.
at 25; see also Smith Decl. ¶ 22. The 2017 MOA
continued this obligation and New Vista became required to
remit supplemental contributions at a rate of 72.1% beginning
July 1, 2016 and 85.5% beginning July 1, 2017. See
2017 MOA ¶ 4. Failure to pay such additional
contributions under a rehabilitation plan is treated as a
delinquency by ERISA. 29 U.S.C. § 1085(e)(3)(C)(iv).
None of these obligations is denied by New Vista.
Fund alleges that New Vista failed to remit required
contributions, supplemental contributions, interest, and
liquidated damages for the period of July 2013 through April
2017. Mot. at 2. It calculates that New Vista owes a total of
$194, 390.51 for this period, plus still-accruing interest
and attorneys' fees and costs. Id.
Smith Declaration details how the Fund determined these
liabilities and includes a spreadsheet (Exhibit A) specifying
the monthly amounts owed by New Vista from July 2013 through
April 2017. The Fund calculates amounts due based on the
total gross monthly earnings of all covered employees as
reported by the employer in monthly “remittance
reports”; this amount is then multiplied by the 2.75%
rate set forth in the Tuchman Agreement to determine the base
contribution amount due per month. See Smith Decl.
¶ 26; see also Id. at Exhibit A (noting in
spreadsheet column a the “CBA Rate” of 0.0275 by
which “Base CBA Contributions Due” are
calculated). The spreadsheet also shows the “Total
Contributions Due, ” and “Amount Received,
” which include base contributions as well as
supplemental contributions (i.e., surcharges as set
forth in the Rehabilitation Plan); another column for
“Contribution Underpayment” shows the ...