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Painters Dist. Council No. 2 v. O'Brien

United States District Court, E.D. Missouri, Eastern Division

July 30, 2014

PAINTERS DIST. COUNCIL NO. 2, et al., Plaintiffs,
v.
TIM O'BRIEN, et al., Defendants.

MEMORANDUM and ORDER

STEPHEN N. LIMBAUGH Jr., District Judge.

This matter is before the Court on plaintiffs' Motion for Summary Judgment (#58). Although the motion was filed on April 18, 2014, the defendants have not responded. Notably, counsel for the defendants withdrew in August 2013. The Court's order permitting withdrawal ordered the defendant corporations to obtain counsel within 21 days. Months have passed, and the corporations have not yet had counsel enter an appearance. The individual defendants have also remained without counsel, and they have informed the Court that although they have sought to settle the matter with plaintiffs, they will not be hiring counsel to represent themselves or the corporate defendants. (#62.)

I. Background

Defendant T.S. O'Brien, Inc. ("T.S. O'Brien") first entered into a collective bargaining agreement ("CBA") with plaintiff Painters District Council No. 2 ("Painters") and the Painting and Decorating Contractors of America, Chapter #2, on July 1, 1999. The CBA (and successor CBAs to which T.S. O'Brien was also bound) bound T.S. O'Brien to submit fringe benefits, dues remissions, reports and contributions to the Labor Management Cooperation Fund. Defendants were bound by CBAs at least through 2013 by virtue of defendants' signature on agreements dated 1999, 2001, and 2006 with the Painters Union. Defendants were bound by the "2006-2010 Agreement" in which the defendants agreed that an employer group called the PDCA would "represent the Employer for all collective bargaining purposes during the term of this Agreement, specifically including any and all negotiations with the Union for any renewal or subsequent Agreements." The same Agreement further affirmed that it "shall automatically be renewed from year to year" subject to certain actions. In 2010 the PDCA and Painters Union agreed to a new Collective Bargaining Agreement that bound T.S. O'Brien. T.S. O'Brien also demonstrated its agreement and consent to be bound to the renewed CBA period from 2010 through 2013 by completing and submitting Contribution Reports to the plaintiffs' third party administrator bearing the acknowledgment that "The preparation and submission of this report evidences our agreement to make contributions in accordance with the existing collective bargaining agreement of the Painters District Council No. 2".

Under the terms of the CBAs, T.S. O'Brien was at all relevant times

• obligated to make weekly reports and contributions on all covered employees in its employ, showing the number of hours worked and contributions due.
• obligated to make contributions on a weekly basis to the Trusts and the Labor Management Cooperation Fund.
• obligated to remit Union dues to the Painters.
• bound to the Painters Pension Trust and Plan Agreement ("Pension Agreement"); Painters Welfare Trust Agreement ("Welfare Agreement"); Painters Vacation Plan and Trust Agreement ("Vacation Agreement") and Painters Apprenticeship and Journeyman Training Trust Agreement ("Apprenticeship Agreement").

Defendants Dana and Tim O'Brien are married to each other. Dana O'Brien served as T.S. O'Brien's President, Secretary, and Board of Directors. Tim O'Brien was T.S. O'Brien's Vice-President. On June 9, 1999, Dana and Tim O'Brien, in their individual personal capacities, at the time, but before they signed a collective bargaining agreement on behalf of T.S. O'Brien, signed an unconditional guaranty document labeled "Guaranty of Payment of Wages, Dues Remissions, Fringe Benefit Contributions and Other Miscellaneous Payments" (the "Guaranty").[1] T.S. O'Brien was administratively dissolved in the State of Missouri on or about September 2002. Dana and Tim O'Brien continued to operate and carry on business, in a manner other than for winding up and liquidate its affairs, under the name T.S. O'Brien & Sons, Inc., after the dissolution.

Defendant Precise Painting and Wallcovering ("Precise") is the fictitiously registered name of Dana O'Brien. Precise is one in the same as T.S. O'Brien & Sons, Inc.

T.S. O'Brien has not made required contribution reports, monetary contributions and dues remissions since August 28, 2011. Despite the existence of the Guaranty, Dana and Tim O'Brien have failed and continue to fail to act under their obligations created by the Guaranty, damaging the plaintiffs. The Pension Agreement, Welfare Agreement, Vacation Agreement, and Apprenticeship Agreement, along with their Trustees, are third party beneficiaries of the CBA. Article XXII of the Pension Agreement, Welfare Agreement, Vacation Agreement, Apprenticeship Agreement, and CBA provides the Painters and Trusts the right to audit the books of a participating employer when such is deemed necessary or desirable. To determine what, if any, delinquent contributions T.S. O'Brien owed plaintiffs pursuant to the CBA, plaintiffs hired Wolfe Nilges Nahorksi, P.C. ("Wolfe") to examine defendants' earnings records, payroll tax reports, cash disbursement records and payroll journals. Wolfe presented its findings to the defendants to give them an opportunity to dispute its findings and/or calculations. The defendants did not dispute Wolfe's findings that between July 1, 2009 and July 31, 2011, T.S. O'Brien & Sons, Inc. incurred a delinquency of $69, 410.82, which includes: delinquent contributions; liquidated damages; interest on the delinquency, and costs incurred as part of Wolfe's determination of those delinquencies.

This litigation was filed as a result of the alleged delinquincies owed to Painters by defendants. Plaintiffs seek ...


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