Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilson v. DM Excavating, LLC

United States District Court, S.D. Ohio, Eastern Division

January 16, 2020

CAROL A. WILSON, et al., Plaintiffs,
v.
DM EXCAVATING, LLC, Defendant.

          OPINION AND ORDER

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. BACKGROUND

         Plaintiffs 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 their beneficiaries.

         On 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, [1] and 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.)

         As 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.)[2] 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).

         II. SUMMARY JUDGMENT STANDARD

         Under 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”).

         The 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).

         III. DISCUSSION

         Plaintiffs seek to recover several categories of damages: delinquent fringe benefit contributions, interest, and liquidated damages. The Court will address each of these categories in turn.

         A. Fringe Benefit Contributions

         The 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).

         Here, 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.

         1. David McElrath

         DM 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.

         First, “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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.