Free Complaint - District Court of California - California

Case 3:08-cv-00680-PJH

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1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 SALTZMAN & JOHNSON LAW CORPORATION 120 Howard Street, Suite 520 3 San Francisco, CA 94105 (415) 882-7900 4 (415) 882-9287 ­ Facsimile [email protected] 5 [email protected] 6 Attorneys for Plaintiffs 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 GIL CROSTHWAITE, RUSS BURNS, in their 12 respective capacities as Trustees of the OPERATING ENGNEERS HEALTH AND 13 WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; PENSION TRUST FUND 14 FOR OPERATING ENGINEERS; PENSIONED OPERATING ENGINEERS 15 HEALTH AND WELFARE FUND; OPERATING ENGINEERS AND 16 PARTICIPATING EMPLOYERS PREAPPRENTICESHIP, APPRENTICE AND 17 JOURNEYMEN AFFIRMATIVE ACTION TRAINING FUND; OPERATING 18 ENGINEERS VACATION AND HOLIDAY PLAN; OPERATING ENGINEERS 19 CONTRACT ADMINISTRATION TRUST FUND; OPERATING ENGINEERS MARKET 20 PRESERVATION TRUST FUND; OPERATING ENGINEERS INDUSTRY 21 STABILIZATION TRUST FUND; BUSINESS DEVELOPMENT TRUST FUND; AND 22 HEAVY AND HIGHWAY COMMITTEE, 23 24 v. 25 HAMMAN'S INC., a California Corporation, and JAMES DEAN HAMMAN, Individually, 26 Defendants. 27 28
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Case No.: C08-0680 PJH COMPLAINT

Plaintiffs,

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Parties The Operating Engineers Health and Welfare Trust Fund for Northern California;

Pension Trust Fund for Operating Engineers (which includes the Pension Plan for the Pension Trust Fund for Operating Engineers, and the Operating Engineers Annuity Plan); Pensioned Operating Engineers Health and Welfare Fund; Operating Engineers and Participating Employers Pre-Apprenticeship; Apprentice and Journeyman Affirmative Action Training Fund; and

8 Operating Engineers Vacation and Holiday Plan are employee benefit plans as defined in the 9 Employee Retirement Income Security Act of 1974 ("ERISA") § 3(3), 29 U.S.C. § 1002(3). They 10 and their fiduciaries are together referred to herein as "ERISA Plaintiffs." Gil Crosthwaite and 11 12 authority to act on behalf of all Trustees. 13 14 2. Operating Engineers Local Union No. 3 of the International Union of Operating Russ Burns are Co-Chairmen of the Joint Boards of Trustees of the ERISA Plaintiffs with

15 Engineers, AFL-CIO ("Union") is a labor organization as defined in § 2(5) of the National Labor 16 Relations Act ("NLRA"), 29 U.S.C. § 152(5). 17 3. HAMMAN'S INC. and JAMES DEAN HAMMAN are employers by virtue of

18 ERISA § 3(5), 29 U.S.C. § 1002(5), and NLRA § 2(2), 29 U.S.C. § 152(2). He and those entities 19 20 of payment to plaintiffs of the fringe benefits claimed herein, pursuant to the Collective 21 22 23 24 4. Bargaining Agreement described below. Jurisdiction Jurisdiction exists in this Court over the claims asserted by the ERISA Plaintiffs by are referred to herein as "Defendants". JAMES DEAN HAMMAN is further a personal guarantor

25 virtue of ERISA § 502, 29 U.S.C. § 1132, in that the ERISA Plaintiffs seek to enforce the 26 27 28
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provisions of ERISA and the terms of their plans, seek to enjoin the acts and practices which

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1 violate ERISA, seek equitable relief to redress such violations, and seek all other appropriate relief 2 under ERISA. 3 4 5 6 7 8 and conditions of a collective bargaining agreement between the employer and a labor organization. 6. To the extent jurisdiction over any claim does not exist under ERISA or the 5. Jurisdiction exists in this Court over all the claims by virtue of Labor Management

Relations Act ("LMRA") § 301, 29 U.S.C. § 185, in that the plaintiffs seek to enforce the terms

9 LMRA, supplemental jurisdiction exists in this Court over such claims by virtue of 29 U.S.C. § 10 1367 in that they arise out of a common nucleus of operative facts that form the basis of the 11 12 Venue 13 14 7. Venue exists in this Court with respect to the claims under ERISA § 502 because federal claims asserted herein, each of which has a substantial ground in federal jurisdiction.

15 all of the plans of the ERISA Plaintiffs are administered within this district and the breach took 16 place in this district. 17 8. Venue exists in this Court with respect to the claims under LMRA §301(a) because

18 this Court has jurisdiction over the parties, as the Union maintains its principal place of business in 19 20 in this district, and the claims arise in this district. 21 22 23 9. Intradistrict Assignment The basis for assignment of this action to this court's Oakland Division is that all of this district, its duly authorized officers or agents are engaged in representing employee members

24 the events and omissions giving rise to plaintiffs' claims occurred in the County of Alameda, 25 where the ERISA Plaintiff funds and union dues, were administered during the period claimed 26 27 28
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herein, and where defendants therefore failed to fulfill their statutory and contractual obligations to the plaintiffs.
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Bargaining Agreement The Union and defendants entered into a collective bargaining agreement requiring

employer contributions to the Plaintiff Funds, and to the Union for union dues and to other Trust Funds more fully described in the Master Agreement incorporated into the Independent Northern California Construction Agreement to which defendants are signatory. That Agreement is referred to herein as the "Bargaining Agreement," and the ERISA Plaintiffs and Trust Funds are third party

8 beneficiaries of that Bargaining Agreement. Additionally, Hamman's Inc. is signatory to the 9 Private Work Agreement for District 10 (Santa Rosa), which similarly requires contributions to 10 the plaintiff Funds, to the Union for dues, and to other Trust Funds more fully described therein. 11 12 Stabilization Trust Fund, Business Development Trust Fund, and Heavy and Highway Committee, 13 14 together referred to herein as "Trust Funds," are funds for which plaintiff Boards of Trustees are 11. The Operating Engineers Market Preservation Fund, Operating Engineers Industry

15 the assignees of monies due under the Bargaining Agreement. 16 12. Under the terms of said Bargaining Agreement and of the governing documents of

17 the ERISA Plaintiffs which documents are incorporated into the Bargaining Agreement and made 18 binding on defendants, defendants are (1) required to submit monthly reports of hours worked by 19 20 and to the Trust Funds, certain sums of money, the amounts of which are determined by the hours 21 22 worked by employees of defendants, all as more fully set forth in said Bargaining Agreement. its employees, and (2) to regularly pay to the Plaintiff ERISA Funds, to the Union for union dues,

23 Also under the terms of said Bargaining Agreement and the governing documents of the Plaintiff 24 Funds, defendants (3) agreed to pay liquidated damages for each delinquent payment, which 25 become part of the contributions. Defendants further agreed (4) to pay interest on the combined 26 27 28
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contributions and liquidated damages at the rates set by the Bargaining Agreement, from the day

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1 immediately following the date that each such payment became due until paid in full, all as more 2 fully set forth in said Bargaining Agreement. 3 4 5 6 7 8 9 13. Trust Funds. Included therein is the obligation to provide certain records for review by plaintiffs' representatives, and to (6) pay any amounts found due on audit. Facts Defendants underpaid contributions owing to the plaintiffs under the Bargaining Under the terms of the Bargaining Agreement to which he is signatory, (5) defendant James Dean Hamman is individually liable for any corporate obligation for payment to plaintiff

10 Agreement for work performed during the months November 2005 through November 2006, and 11 12 Agreement for work performed during the months of July through September 2007. Liquidated 13 14 damages and interest have been incurred and are owing for the unpaid contributions owed for this further failed to pay contributions reported by them as owing to the plaintiffs under the Bargaining

15 period. 16 14. Demand was made on defendants on behalf of plaintiffs, for payment of all

17 delinquent contributions, liquidated damages and interest due to the ERISA Plaintiff Funds, the 18 Union, and the Trust Funds. Defendant has failed and refused to make payment of any amounts 19 20 15. 21 22 ERISA Plaintiffs under ERISA § 515, 29 U.S.C. § 1145, and by failing to make such timely Defendants have a statutory duty to make the required payments timely to the due claimed herein, as required by the Bargaining Agreement.

23 payments has violated the law. 24 16. Defendants' failure and refusal to timely submit the aforesaid payments, as alleged

25 herein, was at all times, and still is, willful. Said refusal is unjustified and done with malicious 26 27 28
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intent. Defendants' failure to timely make such payments in compliance with the Bargaining Agreement has reduced the corpus of the ERISA Plaintiff funds and operating ability of the
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1 Union, thereby impairing their ability to pay or provide benefits to members and beneficiaries, and 2 thereby causing harm to all ERISA Plaintiffs funds and to the Union. Defendants' obligations 3 4 5 6 7 Plaintiff Funds and the Union. Plaintiffs are informed and believe, and therefore allege, that defendants will continue to willfully refuse to make said payments unless ordered by this Court to pursuant to the Bargaining Agreement are continuing obligations; defendants continue to breach said Bargaining Agreement by failing and refusing to timely pay monies due thereunder to the

8 comply. 9 17. Plaintiffs are without an adequate remedy at law and will suffer continuing and

10 irreparable injury, loss and damage unless defendants are ordered specifically to perform all 11 12 the LMRA, 29 U.S.C. §§ 141-197, the Bargaining Agreement, and the governing documents of 13 14 the Plaintiffs Funds referred to therein, and are restrained from continuing to refuse to perform as obligations required on defendants' part to be performed under ERISA, 29 U.S.C. §§ 1101-1381,

15 required thereunder. 16 18. This Court is authorized to issue injunctive relief based on traditional standard. As

17 set forth above, plaintiffs have a strong likelihood of success on the merits, there is the possibility 18 that the Board of Trustees and the participants will suffer irreparable injuries, and the balance of 19 20 Prayer 21 22 23 24 WHEREFORE, Plaintiffs pray as follows: 1. For a judgment against defendants as follows: a. For unpaid contributions for hours worked as specified above and thereafter hardships and advancement of public interest favor plaintiffs.

25 through judgment; 26 27 28
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(1)

To the ERISA Plaintiffs, in accordance with ERISA Section

502(g)(2)(A), 29 U.S.C. Section 1132(g)(2)(A) and the Bargaining Agreement;
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1 2 3 4 5 6 7 1132(g)(2)(c). c. b.

(2)

To the Union in accordance with the Bargaining Agreement.

Liquidated damages on late paid and unpaid contributions in an amount

provided for under the Bargaining Agreement and governing documents of the Plaintiff Funds and with respect to the ERISA Plaintiffs, ERISA Section 502(g)(2)(c), 29 U.S.C. Section

Interest on late paid and unpaid contributions, dues and liquidated damages

8 which become a part of the contributions, at the rates set in accordance with the Bargaining 9 Agreement, the governing documents of the ERISA Plaintiffs and the ERISA Section 10 502(g)(2)(B), 29 U.S.C. Section 1132(g)(2)(B). 11 12 as third party beneficiaries of the Bargaining Agreements at time of judgment, plus interest and 13 14 liquidated damages as above provided and in accordance with the Bargaining Agreements, the 2. For any additional contributions and dues payable to plaintiffs and the Trust Funds

15 governing documents of the Plaintiff Funds, and with respect to the ERISA Plaintiffs, ERISA 16 Section 502(g)(2), 29 U.S.C. Section 1132(g)(2). 17 3. ERISA Plaintiffs' reasonable attorneys' fees and costs of this action and for

18 auditors' costs, in accordance with ERISA § 502(g)(2)(D) and (E), 29 U.S.C. § 1132(g)(2)(D) and 19 20 LMRA Section 301, 29 U.S.C. § 185 for all plaintiffs. 21 22 23 4. For an order, (a) requiring that defendants comply with their obligations to plaintiffs under (E); and in accordance with the collective bargaining agreement for all Bargained Plans, and with

24 the terms of the Bargaining Agreement and the governing documents referred to therein; 25 26 27 28
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(b) ERISA; and ///

enjoining defendants from violating the terms of those documents and of

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1

(c)

enjoining defendants from disposing of any assets until said terms have

2 been complied with, and from continuation or operating of defendants' business until said terms 3 4 5 6 7 8 Dated: January 28, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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have been complied with. 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/____________________ Muriel B. Kaplan Attorneys for Plaintiffs

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