United States District Court, S.D. Ohio, Eastern Division
CAROL A. WILSON, et al., Plaintiffs,
DM EXCAVATING, LLC, Defendant.
OPINION AND ORDER
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE
matter, in which the parties have consented to the
jurisdiction of the Magistrate Judge pursuant to 28 U.S.C.
§ 636(c), is before the Court on the Motion for Summary
Judgment of Plaintiffs Carol A. Wilson, Administrator, and
Trustees of the Ohio Operating Engineers Health and Welfare
Plan, the Ohio Operating Engineers Pension Fund, the Ohio
Operating Engineers Apprenticeship and Training Fund, and the
Ohio Operating Engineers Education and Safety Fund
(“Plaintiffs' Motion for Summary Judgment”).
(ECF No. 20.) For the following reasons, Plaintiffs'
Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART.
are the Administrator and Trustees of the Ohio Operating
Engineers Health and Welfare Plan, the Ohio Operating
Engineers Pension Fund, the Ohio Operating Engineers
Apprenticeship and Training Fund, and the Ohio Operating
Engineers Education and Safety Fund (the
“Funds”). The Funds are jointly-administered,
multiemployer fringe benefit programs established for the
benefit of employees of contractors who perform work pursuant
to a collective bargaining agreement (the “CBA”,
ECF No. 20-1) with the International Union of Operating
Engineers, Local Nos. 18, 18A and 18B. The Funds provide
health and welfare, pension, and other fringe benefits to
March 28, 2017, Defendant DM Excavating, LLC
(“DM”) executed a “Distribution and
Maintenance Agreement State of Ohio All Zones, ” by
which DM became bound by the terms of the CBA. (ECF No. 1-1.)
The CBA is limited in both geographic jurisdiction, which
covers 85 counties in Ohio and 4 counties in Kentucky,
craft jurisdiction, which covers “distribution pipeline
construction and maintenance work.” (CBA 3, 16, ECF No.
20-1.) Of relevance here, the CBA requires employers such as
DM to make fringe benefit contributions to the funds. Article
XII states, “Fringe Benefits shall be paid on all hours
paid.” (Id. at 19.)
provided by the CBA, the Funds conducted an audit of DM's
payroll records for the period of March 1, 2017, to June 1,
2019. (Wilson Aff. ¶ 6, ECF No. 20-1.) The audit
disclosed that DM had not made fringe benefit payments during
the audit period for work done by David McElrath (the sole
owner of DM), Brad Doan, and Joel McElrath (both employees of
DM). Plaintiffs seek $199, 260.96 in delinquent contributions
for the audit period, as well as interest and liquidated
damages. (Wilson Aff. ¶ 6, ECF No. 20-1.) Plaintiffs now
move for summary judgment on all of their claims (other than
attorney's fees and costs, which Plaintiffs indicate they
will seek in a post-judgment motion).
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56, “[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “The moving party has the initial burden of
proving that no genuine issue of material fact exists, and
the court must draw all reasonable inferences in the light
most favorable to the nonmoving party.” Stansberry
v. Air Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th
Cir. 2011) (internal quotations omitted); cf. Fed.
R. Civ. P. 56(e)(2) (providing that if a party “fails
to properly address another party's assertion of
fact” then the Court may “consider the fact
undisputed for purposes of the motion”).
burden then shifts to the nonmoving party to “set forth
specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). “The evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor.” Id. at 255 (citation
omitted). “The nonmovant must, however, do more than
simply show that there is some metaphysical doubt as to the
material facts, . . . there must be evidence upon which a
reasonable jury could return a verdict in favor of the
non-moving party to create a genuine dispute.” Lee
v. Metro. Gov't of Nashville & Davidson Cty.,
432 Fed.Appx. 435, 441 (6th Cir. 2011) (internal quotation
marks and citations omitted); see also Fed. R. Civ.
P. 56(c) (requiring a party maintaining that a fact is
genuinely disputed to “cit[e] to particular parts of
materials in the record”). “When a motion for
summary judgment is properly made and supported and the
nonmoving party fails to respond with a showing sufficient to
establish an essential element of its case, summary judgment
is appropriate.” Stansberry, 651 F.3d at 486
(citing Celotex, 477 U.S. at 322-23).
seek to recover several categories of damages: delinquent
fringe benefit contributions, interest, and liquidated
damages. The Court will address each of these categories in
Fringe Benefit Contributions
Employee Retirement Income Security Act (“ERISA”)
creates a cause of action for plan fiduciaries to recover
contributions owed under a collective bargaining agreement.
29 U.S.C. §§ 1145, 1132(a)(3). When a union
establishes a multi-employer fringe benefit trust fund, and
when the union enters into a collective bargaining agreement
with an employer that requires contributions to that trust
fund, the fund becomes a third-party beneficiary of the
collective bargaining agreement and is entitled to rely on
its literal terms. Bd. of Tr. of the Plumbers, Pipe
Fitters & Mech. Equip. Serv., Local Union No. 392 Pension
Fund v. B & B Mech. Servs., Inc., 813 F.3d 603, 609
(6th Cir. 2015).
there is no dispute that DM was party to the CBA during the
audit period of March 1, 2017 to June 1, 2019. The dispute
concerns whether delinquent contributions were properly
assessed during the audit period against three specific
employees: David McElrath, Brad Doan, and Joel McElrath.
admits that David McElrath performed some work covered by the
CBA's craft and geographic jurisdictions, but asserts
that only approximately 25-40% of his time working for DM was
spent on construction and maintenance work that could be
covered by the CBA. (Urick Aff. ¶ 8, ECF No. 21-2.) DM
argues that it should not be liable for delinquent
contributions assessed by the Funds for the total number of
hours worked by David McElrath, because (1) he is the sole
owner of DM, and (2) less than half of his hours worked were
within the craft jurisdiction of the CBA. Both of the
arguments lack merit.
“the Southern District of Ohio has . . . required
fringe benefit contributions on behalf of the owners of
signatory employers where the very same Funds at issue here
[i.e., Plaintiffs in the case at bar] sought recovery.”
Wilson v. A&K Rock Drilling, Inc., No.
2:16-CV-739, 2017 WL 2422800, at *7 (S.D. Ohio June 5, 2017)
(citing Orrand v. Scassa Asphalt, Inc., No.
2:12-cv-1131, 2014 WL 4272722, at *1 (S.D. Ohio Aug. 29,
2014) (requiring contributions on behalf of all company
employees, including the owner); Bunn Enters., Inc. v.
Ohio Operating Eng'rs Fringe Benefit Programs, No.
2:13-cv-357, 2013 WL 3147956, at *7 (S.D. Ohio June 19, 2013)
(same)). See also Wilson v. Fioritto Constr., LLC,
No. 2:17-CV-317, 2018 WL 2149737, at *5-6 (S.D. Ohio May 10,
2018) (same). The A&K Rock Drilling court
further noted that on the two occasions on which these
decisions were appealed, the United States Court of Appeals
for the Sixth Circuit affirmed. 2017 WL 2422800, at *7
(citing Scassa Ashpalt, 794 F.3d 556 (6th Cir. 2015)
and Bunn Enters., 606 Fed.Appx. 798 (6th Cir.
2015)). As a result, “even if [David McElrath] truly
served as [DM's] owner or corporate representative, as
the company alleges, he still could qualify as an ...