United States District Court, E.D. Missouri, Eastern Division
PAINTERS DISTRICT COUNCIL NO. 58, et al., Plaintiff,
RDB UNIVERSAL SERVICES, LLC et al., Defendants.
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court after a non-jury trial to
address the claims asserted by Plaintiffs in their
Complaint [ECF No. 1] against RDB Universal Services, LLC,
Deloris Berry, and Relder Berry. A two-day bench trial on
these matters was held before this Court on January 17 and
18, 2017. The Court makes the following findings of fact and
conclusions of law. Fed.R.Civ.P. 52(a).
FINDINGS OF FACT
bring this suit under the Employment Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001,
et seq., and the Labor Management Relations Act
(“LMRA”), 29 U.S.C. § 141, et seq.
against Defendant RDB Universal Services, LLC
(“Defendant”). Plaintiffs are a labor
organization with principal offices in St. Louis, Missouri,
and trusts, which are administered within the Eastern
District of Missouri. Defendant was doing business in St.
Louis, Missouri at all relevant times, and its principal
office is located in St. Louis, Missouri. Jurisdiction and
venue are proper.
allege the following. Defendant was bound by a collective
bargaining agreement (“CBA”) since April 15,
2013. The CBA required Defendant to submit fringe benefits
and dues remissions for each hour worked by covered employees
at the rate and manner specified in the CBA. Defendant was
also required to submit weekly reports and contributions on
all covered employees, showing the number of hours worked and
the contributions due. Since August 9, 2014, Defendant has
failed to file accurate reports of the hours worked.
Plaintiffs ask the Court to enter an order requiring
Defendant to satisfy its contractual obligations by paying
all principal amounts due, liquidated damages, attorneys'
fees and costs.
filed a counterclaim against Plaintiffs, alleging three
counts, all of which were dismissed by the Court in its
ruling on summary judgment. At summary judgment, the Court
determined Defendant is liable for benefits and dues, but it
did not determine the amount of damages owed. After summary
judgment and prior to trial, Deloris and Relder Berry filed
notice with the Court they had filed for bankruptcy. The
Bankruptcy Court lifted the automatic stay as to Defendant
for the purpose of determining amounts owed to Plaintiffs.
The two remaining issues to be determined at trial are which
CBA was in effect throughout the relevant time period, and
how much in damages is owed by Defendant.
two-day bench trial on this matter, Plaintiffs presented
their case-in-chief by calling witnesses Greg Smith, Charles
Kinder, Angela Sucharski, Daniel Wienstroer and Deloris Berry
as the corporate representative of Defendant, through live
testimony and depositions. Defendant called Becky Schwab and
Deloris Berry, as the corporate representative of Defendant.
The Court makes the following findings of fact based on the
evidence presented and the reasonable inferences derived
entered a CBA with Plaintiffs on April 15, 2013. Ex. P1. The
CBA in effect at that time began on September 1, 2010, and
was effective until August 31, 2013. Trial Tr. Vol. 1,
25:15-16; Ex. P1. The parties agreed to a new CBA which began
September 17, 2013, and was effective until August 31, 2016.
Trial Tr. Vol. 1, 28:17-20; Ex. P2. The Finishing Contractors
Association of St. Louis, otherwise known as the Painting
Decorator Contractors of America (“FCA/PDCA”),
represent employers and bargain with Plaintiffs for new CBAs.
Weinstroer Dep. Tr. 6:6-22 When an employer signs a CBA, the
employer agrees the association will represent the employer
for the current CBA and all future CBAs unless notice is
provided of the employer's intent to withdraw. Weinstroer
Dep. Tr. 10:4-12. The second CBA was not signed by Defendant
but would have been signed by the association on behalf of
Defendant. Trial Tr. Vol. 1, 68: 16-20. Plaintiffs
never received notice from Defendant regarding termination of
the CBA or rescission of their bargaining rights from
Plaintiffs. Trial Tr. Vol. 1, 28:5-6, 9-11; 31:9-16.
rates required to be paid to each fund for each employee are
contained in the CBA, as well as the liquidated damages to be
paid for late payments. Trial Tr. Vol. 1, 44:2-7, 17-23;
57:10-14. An employer is required to pay benefits for
employees who are part of the union, no matter what type of
work they are doing. Trial Tr. Vol. 1, 76:23-77:5; 101:1-5.
Kinder conducted a payroll audit on Defendant for the time
period of June 1, 2013, to August 31, 2014. Trial Tr. Vol. 1,
127:20-22; Ex. P4. A payroll audit examines hours worked by
union employees that went unreported, consequently, benefits
were not paid for those hours. Trial Tr. Vol. 1,
119:23-120:5. The audit does not examine reports filed that
were accurate but unpaid or paid late. Trial Tr. Vol. 1,
122:16-21. If an employee was not a painter or a member of
the painters' union, it was not included in Mr.
Kinder's audit. Trial Tr. Vol. 1, 138:15. He discovered
4, 324.4 hours were unreported resulting in an amount due of
$65, 803.77 for principal, and $19, 081.52 for liquidated
damages. Trial Tr. Vol. 1, 128:1, 5-6; Ex. P4. The total
amount due, including the costs of the audit, is $89, 997.94.
Trial Tr. Vol. 1, 128:12, Ex. P4.
Sucharski works for Benesys, the third party administrator
for Plaintiffs. Trial Tr. Vol. 2, 4:12-13. She administrates
the trust funds for Plaintiffs. Trial Tr. Vol. 2, 5:12-13.
Employers submit reports of the number of hours worked for
each employee each week and a check to pay the benefits owed
for each employee for the week. Trial Tr. Vol. 2, 7:10-8:5. A
report is not entered until full payment for the week has
been received. Trial Tr. Vol. 2, 11:12-18. For reports
submitted with no payment by Defendant, $108.825.58 is owed
for the time period July 25, 2015 to October 24, 2015. Trial
Tr. Vol. 2, 24:7-12; 30:7-11; Ex. P8. The liquidated damages
owed on this amount, as of January 17, 2017, are $37, 755.06.
Trial Tr. Vol. 2, 30:17-21; Ex. P8. For reports where some
payment was made, but not the full amount, for the time
period of September 27, 2014, through July 4, 2015, $18,
023.69 is owed. Trial Tr. Vol. 2, 37:21-24; Ex. P9.
Additional liquidated damages in the amount of $16, 669.42
are owed for reports where payment was made but late for the
time period August 9, 2014, through October 24, 2015. Trial
Tr. Vol. 2, 41:3-6; Ex. P10. These amounts do not cover the
same time period or delinquencies as the payroll audit. Trial
Tr. Vol. 2, 54:23-55:5. All payments received from Defendant
have been credited to the amounts owed to Plaintiffs. Trial
Tr. Vol. 2, 56:2-6. The total amount of damages, which
includes principal benefits unpaid, amount owed on unreported
hours, and liquidated damages, is $271, 271.69.
CONCLUSIONS OF LAW
are two issues which the Court needs to decide in this
matter. First, which CBA is in effect, and second, the amount
of damages owed to Plaintiffs. The CBA in effect is the CBA
covering 2013 to 2016. When Defendant signed the original
CBA, it agreed the FCA/PDCA will represent it for the
original CBA and all future CBAs, unless Defendant serves
timely notice to withdraw. Ex. P1, pg. 3. The testimony from
several witnesses was no timely notice was given to
Plaintiffs or to FCA/PDCA that Defendant wished to withdraw
from the agreement. A new CBA was negotiated by the FCA/PDCA,
which had the power to enter into the CBA on behalf of
Defendant. Even though Defendant did not sign the new CBA, it
is still bound by the terms of the agreement, because it
assigned it's bargaining rights to the FCA/PDCA when it
agreed to the original CBA.
shall pay Plaintiffs damages in the amount of $271, 271.69.
This includes amounts owed to the various trust funds and
liquidated damages. The fringe benefits owed were calculated
using the amounts required by the CBA. Ex. P2, pg. 14.
Defendant argued payment is not required for employees who
are covered by the CBA, but doing other work, such as a
painter acting as a laborer. However, the CBA requires
benefits be paid for all hours worked by a covered employee,
no matter the nature or character of the work performed. Ex.
P2, pg. 23. Additionally, Defendant did not provide any
evidence of what amounts should be subtracted from the amount
owed due to non-painting work. The total amount of benefits
due to Plaintiffs for hours reported but unpaid is $126,
849.27. In addition to this amount, the ...