Free Complaint - District Court of California - California

Case 3:08-cv-03973-SC

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1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 (415) 882-7900 4 (415) 882-9287 ­ Facsimile [email protected] 5 [email protected] 6 Attorneys for Plaintiffs 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 GIL CROSTHWAITE, RUSS BURNS, in their respective capacities as Trustees of the 13 OPERATING ENGNEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN 14 CALIFORNIA; PENSION TRUST FUND FOR OPERATING ENGINEERS; 15 PENSIONED OPERATING ENGINEERS HEALTH AND WELFARE FUND; 16 OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS PRE17 APPRENTICESHIP, APPRENTICE AND JOURNEYMEN AFFIRMATIVE ACTION 18 TRAINING FUND; OPERATING ENGINEERS VACATION AND HOLIDAY 19 PLAN; OPERATING ENGINEERS CONTRACT ADMINISTRATION TRUST 20 FUND; OPERATING ENGINEERS MARKET PRESERVATION TRUST FUND; 21 OPERATING ENGINEERS INDUSTRY STABILIZATION TRUST FUND; BUSINESS 22 DEVELOPMENT TRUST FUND; AND HEAVY AND HIGHWAY COMMITTEE, 23 Plaintiffs, 24 v. 25 ADVANCED DRILLING WORKS, INC., a 26 California Corporation, and GREGORY G. UFFENS, an Individual, 27 Defendants. 28 Case No.: C08-3973 SC COMPLAINT TO COMPEL AUDIT

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Case No.: C08-3973 SC

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1 Parties 2 1. 3 Pension Trust Fund for Operating Engineers (which includes the Pension Plan for the Pension 4 Trust Fund for Operating Engineers, and the Operating Engineers Annuity Plan); Pensioned 5 Operating Engineers Health and Welfare Fund; Operating Engineers and Participating Employers 6 Pre-Apprenticeship; Apprentice and Journeyman Affirmative Action Training Fund; and 7 Operating Engineers Vacation and Holiday Plan are employee benefit plans as defined in the 8 Employee Retirement Income Security Act of 1974 ("ERISA") § 3(3), 29 U.S.C. § 1002(3). They 9 and their fiduciaries are together referred to herein as "ERISA Plaintiffs." Gil Crosthwaite and 10 Russ Burns are Co-Chairmen of the Joint Boards of Trustees of the ERISA Plaintiffs with 11 authority to act on behalf of all Trustees. 12 2. 13 Engineers, AFL-CIO ("Union") is a labor organization as defined in § 2(5) of the National Labor 14 Relations Act ("NLRA"), 29 U.S.C. § 152(5). 15 3. 16 ("Uffens") are employers by virtue of ERISA § 3(5), 29 U.S.C. § 1002(5), and NLRA § 2(2), 29 17 U.S.C. § 152(2), and Gregory G. Uffens personally guaranteed payment of fringe benefits. They 18 are referred to herein as "Defendants". 19 Jurisdiction 20 4. 21 virtue of ERISA § 502, 29 U.S.C. § 1132, in that the ERISA Plaintiffs seek to enforce the 22 provisions of ERISA and the terms of their plans, seek to enjoin the acts and practices which 23 violate ERISA, seek equitable relief to redress such violations, and seek all other appropriate relief 24 under ERISA. 25 5. 26 Relations Act ("LMRA") § 301, 29 U.S.C. § 185, in that the plaintiffs seek to enforce the terms 27 28
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The Operating Engineers Health and Welfare Trust Fund for Northern California;

Operating Engineers Local Union No. 3 of the International Union of Operating

ADVANCED DRILLING WORKS ("Advanced") and GREGORY G. UFFENS

Jurisdiction exists in this Court over the claims asserted by the ERISA Plaintiffs by

Jurisdiction exists in this Court over all the claims by virtue of Labor Management

Case No.: C08-3973 SC

Case 3:08-cv-03973-SC

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1 and conditions of a collective bargaining agreement between the employer and a labor 2 organization. 3 6. To the extent jurisdiction over any claim does not exist under ERISA or the

4 LMRA, supplemental jurisdiction exists in this Court over such claims by virtue of 29 U.S.C. § 5 1367 in that they arise out of a common nucleus of operative facts that form the basis of the 6 federal claims asserted herein, each of which has a substantial ground in federal jurisdiction. 7 8 7. Venue Venue exists in this Court with respect to the claims under ERISA § 502 because

9 all of the plans of the ERISA Plaintiffs are administered within this district and the breach took 10 place in this district. 11 8. Venue exists in this Court with respect to the claims under LMRA §301(a) because

12 this Court has jurisdiction over the parties, as the Union maintains its principal place of business in 13 this district, its duly authorized officers or agents are engaged in representing employee members 14 in this district, and the claims arise in this district. 15 16 9. Intradistrict Assignment The basis for assignment of this action to this court's Oakland Division is that all of

17 the events and omissions giving rise to plaintiffs' claims occurred in the County of Alameda, 18 where the ERISA Plaintiff funds and union dues, were administered during the period claimed 19 herein, and where defendants therefore failed to fulfill its statutory and contractual obligations to 20 the plaintiffs. 21 22 10. Bargaining Agreement The Union and defendants entered into a collective bargaining agreement requiring

23 employer contributions to the Plaintiff Funds, and to the Union for union dues and to other Trust 24 Funds more fully described in the Master Agreement between the Union and the Associated 25 General Contractors of California, Inc., which is incorporated into the Independent Northern 26 California Construction Agreement, to which Advanced is signatory. That Agreement is referred 27 to herein as the "Bargaining Agreement," and the ERISA Plaintiffs and Trust Funds are third party 28 beneficiaries of that Bargaining Agreement.
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1

11.

The Operating Engineers Market Preservation Fund, Operating Engineers Industry

2 Stabilization Trust Fund, Business Development Trust Fund, and Heavy and Highway Committee, 3 together referred to herein as "Trust Funds," are funds for which plaintiff Boards of Trustees are 4 the assignees of monies due under the Bargaining Agreement. 5 12. GREGORY G. UFFENS is a guarantor for plaintiffs' claim, pursuant to the terms

6 of the Independent Northern California Construction Agreement. 7 13. Under the terms of said Bargaining Agreement and of the governing documents of

8 the ERISA Plaintiffs which documents are incorporated into the Bargaining Agreement and made 9 binding on defendants, defendants are required to submit monthly reports of hours worked by its 10 employees, and to regularly pay to the Plaintiff ERISA Funds, to the Union for union dues, and to 11 the Trust Funds, certain sums of money, the amounts of which are determined by the hours 12 worked by employees of defendants, all as more fully set forth in said Bargaining Agreement. 13 Also under the terms of said Bargaining Agreement and the governing documents of the Plaintiff 14 Funds, defendants agreed to pay liquidated damages for each delinquent payment, which become 15 part of the contributions. Defendants further agreed to pay interest on the combined contributions 16 and liquidated damages at the rates set by the Bargaining Agreement, from the day immediately 17 following the date that each such payment became due until paid in full, all as more fully set forth 18 or incorporated into said Bargaining Agreement. 19 14. Under the terms of said Bargaining Agreement and of the governing documents of

20 the ERISA Plaintiffs which documents are incorporated into the Bargaining Agreement and made 21 binding on defendants, defendants are required to permit an authorized Trust Fund representative 22 to examine such records of defendants as is necessary to determine whether defendants have made 23 full payment of all sums owed to the Plaintiffs, all as more fully set forth in said governing 24 documents, as amended, and incorporated into the Bargaining Agreement. 25 26 15. Facts On several occasions, written demands were made on defendants on behalf of

27 plaintiffs, to schedule an audit and provide records for examination pursuant to the terms of the 28
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1 Collective Bargaining Agreement and the governing documents of the ERISA Plaintiffs, for the 2 period January 1, 2007 through date of audit. 3 16. Defendants have refused and continue to refuse to provide records and to permit an

4 authorized representative of the Plaintiffs to examine defendants' records as are necessary to 5 determine whether defendants have made full payment of all sums owed to the plaintiffs for the 6 period January 1, 2007 through date of audit. 7 17. Defendants have a statutory duty to make required payments timely to the ERISA

8 Plaintiffs under ERISA § 515, 29 U.S.C. § 1145. 9 18. Defendants' failure and refusal to provide records and to permit examination of its

10 records as alleged herein to determine if defendants have met their obligations was at all times, 11 and still is, willful. Defendants continue to breach said Bargaining Agreement, and the governing 12 documents of the ERISA Plaintiffs which documents are incorporated into the Bargaining 13 Agreement and made binding on defendants, by failing to permit examination of its records as 14 alleged. Said refusal is unjustified and done with malicious intent. 15 19. Plaintiffs are without an adequate remedy at law and will suffer continuing and

16 irreparable injury, loss and damage unless defendants are ordered specifically to perform all 17 obligations required on defendants' part to be performed under ERISA, 29 U.S.C. §§ 1101-1381, 18 the LMRA, 29 U.S.C. §§ 141-197, the Bargaining Agreement, and the governing documents of 19 the Plaintiffs Funds referred to therein, and are restrained from continuing to refuse to perform as 20 required thereunder. 21 20. This Court is authorized to issue injunctive relief based on traditional standard. As

22 set forth above, plaintiffs have a strong likelihood of success on the merits, there is the possibility 23 that the Board of Trustees and the participants will suffer irreparable injuries, and the balance of 24 hardships and advancement of public interest favor plaintiffs. 25 26 27 28 Prayer WHEREFORE, Plaintiffs pray as follows: 1. For an order requiring defendants to provide certain records and to submit to an
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1 audit of such records by a date certain for the period January 1, 2007 through date of audit; and 2 2. For judgment against defendants in favor of the ERISA Plaintiffs and the Union, in

3 an amount equal to: 4 a. Any unpaid contributions, due at time of Judgment, including any

5 contributions determined as due by said audit of defendants' records for the period January 1, 6 2007 through date of audit pursuant to ERISA § 502(g)(2)(A), 29 U.S.C. § 1132(g)(2)(A); 7 (1) To the ERISA Plaintiffs, in accordance with ERISA Section

8 502(g)(2)(A), 29 U.S.C. Section 1132(g)(2)(A) and the Bargaining Agreement; 9 10 11 12 b. (2) To the Union, in accordance with the Bargaining Agreement;

Liquidated damages in an amount equal to the greater of: (1) (2) Interest on the unpaid contributions, or Liquidated damages provided for under the Bargaining Agreement

13 on the aforementioned unpaid and late paid contributions, in accordance with the Bargaining 14 Agreement, the governing documents of the ERISA Plaintiffs, and with respect to the ERISA 15 Plaintiffs, ERISA Section 502(g)(2), 29 U.S.C. Section 1132(g)(2). 16 c. Interest on any unpaid and late paid contributions and dues, and on

17 liquidated damages, at the rates and in accordance with the Bargaining Agreement, the governing 18 documents of the ERISA Plaintiffs, ERISA Section 502(g)(2)(B), 29 U.S.C. Section 19 1132(g)(2)(B), with respect to the ERISA Plaintiffs, and the applicable legal rate with respect to 20 dues and where otherwise appropriate. 21 3. For any additional contributions and dues payable to plaintiffs and the Bargained

22 Plans as third party beneficiaries of the Bargaining Agreement at time of judgment, plus interest 23 and liquidated damages as above provided and in accordance with the Bargaining Agreement, the 24 governing documents of the ERISA Plaintiffs and, with respect to the ERISA Plaintiffs, ERISA 25 Section 502(g)(2), 29 U.S.C. Section 1132(g)(2). 26 4. ERISA Plaintiffs' reasonable attorneys' fees and costs of this action in accordance

27 with ERISA § 502(g)(2)(D), 29 U.S.C. § 1132(g)(2)(D); and in accordance with the collective 28
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1 bargaining agreements for all Bargained Plans, and with LMRA Section 301, 29 U.S.C. § 185 for 2 all plaintiffs. 3 4 5. For an order, (a) requiring that defendants comply with their obligations to plaintiffs under

5 the terms of the Bargaining Agreement and the governing documents referred to therein; 6 7 ERISA; and 8 (c) enjoining defendants from disposing of any assets until said terms have (b) enjoining defendants from violating the terms of those documents and of

9 been complied with, and from continuing or operating of defendants' business until said terms 10 have been complied with. 11 12 13 14 Dated: August 19, 2008 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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5. 6.

That the Court retain jurisdiction of this case pending compliance with its orders. For such other and further relief as the Court may deem just and proper.

SALTZMAN & JOHNSON LAW CORPORATION By:______________/s/____________________ Michele R. Stafford Attorneys for Plaintiffs

Case No.: C08-3973 SC