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Case 1:08-cv-01231 RCC
Document 1
Filed 02/29/2008
FILED
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FEBRUARY 29, 2008
MICHAEL W. DOBBINS
CLERK, U.S. DISTRICT COURT
08 C 1231
JUDGE HART
MAGISTRATE JUDGE NOLAN
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(“LMRA”) of 1947 as amended, 29 U.S.C. §185(a), 28 U.S.C. §1331, 28 U.S.C. § 1367, and federal common law.
2. Venue is proper pursuant to Section 502(e)(2) of ERISA, 29 U.S.C. §1132(e)(2), and 28 U.S.C. §1391 (a) and (b).
3. The Funds are multiemployer benefit plans within the meanings of Sections 3(3) and 3(37) of ERISA. 29 U.S.C. §1002(3) and 37(A). They are established and maintained pursuant to their respective Agreements and Declarations of Trust in accordance with Section 302(c)(5) of the LMRA. 29 U.S.C. § 186(c)(5). The Funds have offices and conduct business within this District.
4, Plaintiff Jorgensen is the Administrator of the Funds, and has been duly authorized by the Funds’ Trustees to act on behalf of the Funds in the collection of employer contributions owed to the Funds and to the Construction and General District Council of Chicago and Vicinity Training Fund, and with respect to the collection by the Funds of amounts which have been or are required to be withheld from the wages of employees in payment of Union dues for transmittal to the Construction and General Laborers’ District Council of Chicago and Vicinity (the “Union”). With respect to such matters, Jorgensen is a fiduciary of the Funds within the meaning of Section 3(21)(A) of ERISA, 29 U.S.C. §1002(21)(A).
5. Defendant Cleanique Services, Inc., (hereinafter “Cleanique” or the “Company”) is an involuntarily dissolved Illinois corporation. The date of involuntary dissolution was on or about March 1, 1999. At all times relevant herein, Cleanique did
business within this District and was at all times relevant herein an employer within the
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meaning of Section 3(5) of ERISA, 29 U.S.C. §1002(5), and Section 301(a) of the LMRA, 29 U.S.C. §185(c).
6. Defendant Kenneth Wilson (“Wilson”) is the President of the Company, was the President of the Company at the time of involuntary dissolution and prior to the involuntary dissolution, and is joint and severally liable for all debts and liabilities of the Company to the Funds incurred in carrying on the Company’s business after the involuntary dissolution. 805 ILCS 5/1 et seq.
7. The Union is a labor organization within the meaning of 29 U.S.C. §185(a). The Union and the Company are parties to a collective bargaining agreement which became effective June 1, 2006 (“Agreement”). (A copy of the “short form” Agreement entered into between the Union and the Company which Agreement adopts and incorporates Master Agreements between the Union and various employer associations, and also binds the Company to the Funds’ respective Agreements and Declarations of Trust, is attached hereto as Exhibit A.)
8. The Funds have been duly authorized by the Construction and General Laborers’ District Council of Chicago and Vicinity Training Fund (the “Training Fund”), the Midwest Construction Industry Advancement Fund (“MCIAF”), the Chicagoland Construction Safety Council (the “Safety Fund”), the Laborers’ Employers’ Cooperation and Education Trust (“LECET”), the Builders’ Association (“BAC”), the CDCNI/CAWCC Contractors’ Industry Advancement Fund (the “Wall & Ceiling Fund”), the CISCO Uniform Drug/Alcohol Abuse Program (“CISCO”), the Laborers’ District Council Labor Management Committee Cooperative (“LDCLMCC”), the CARCO
Industry Advancement Fund (“CARCO”), the Chicago Area Independent Contractors
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Association (““CAICA”), and the Illinois Small Pavers’ Association (“ISPA”) to act as an agent in the collection of contributions due to those Funds.
9. The Agreement and the Funds’ respective Agreements and Declarations of Trust obligate the Company to make contributions on behalf of its employees covered by the Agreement for pension benefits, health and welfare benefits, and/or benefits for the training fund and to submit monthly remittance reports in which the Company, inter alia, identifies the employees covered under the Agreement and the amount of contributions to be remitted to the Funds on behalf of each covered employee. Pursuant to the terms of the Agreement and the Funds’ respective Agreements and Declarations of Trust, contributions which are not submitted in a timely fashion are assessed up to 20 percent liquidated damages plus interest.
10. The Agreement and the Funds’ respective Agreements and Declarations of Trust require the Company to submit its books and records to the Funds on demand for an audit to determine benefit contribution compliance.
11. The Agreement requires the Company to obtain and maintain a surety bond to guaranty the payment of future wages, pension and welfare benefits.
12. Notwithstanding the obligations imposed by the Agreement and the Funds’ respective Agreements and Declarations of Trust, the Company has:
(a) failed to submit benefit reports and contributions to the Welfare Fund for the period of December 2007 forward, thereby depriving the Fund of information and
income necessary to administer the Fund;
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(b) failed to submit benefit reports and contributions to the Pension Fund for the period of December 2007 forward, thereby depriving the Fund of information and income necessary to administer the Fund;
(c) failed to submit benefit reports and contributions to the Training Fund for the period of December 2007 forward, thereby depriving the Fund of information and income necessary to administer the Fund;
(d) failed to submit benefit reports and contributions to the one or more of the related funds set forth above in paragraph 8 for the period of December 2007 forward, thereby depriving those funds of information and income necessary to administer the funds; and
(e) failed to obtain and maintain a surety bond.
13. The Company’s failure to submit contributions violates Section 515 of ERISA, 29 U.S.C. §1145, and Section 301 of the LMRA. 29 U.S.C, §185.
14. Pursuant to Section 502(g)(2) of ERISA, 29 U.S.C. §1132 (g)(2), Section 301 of the LMRA, 29 U.S.C. §185, 805 ILCS 5/1 et. seq., and the terms of the Agreement and the Funds’ respective Trust Agreements, the Company and Wilson are liable to the Funds for unpaid contributions, as well as interest and liquidated damages on the unpaid contributions, accumulated liquidated damages, reasonable attorneys’ fees and costs, and such other legal and equitable relief as the Court deems appropriate. WHEREFORE, Plaintiffs respectfully request this Court enter a judgment against Defendants Cleanique Services, Inc., and Kenneth Wilson, individually: a. to submit their books and records to an audit for the period of January 1, 2007 forward;
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Case 1:08-cv-01231 Document 1 Filed 02/29/2008 Page6of8 b ordering the Company and Wilson to submit benefit reports and contributions for the period of December 2007 forward; c. entering judgment in sum certain against the Company and Wilson on the amounts due and owing pursuant to the reports to be submitted and the audit, if any, including contributions, interest, liquidated damages, accumulated liquidated damages and interest on late reports, audit costs, and attorneys’ fees and costs; d. ordering the Company and Wilson to obtain and maintain a bond; and e, awarding Plaintiffs any further legal and equitable relief as the Court deems appropriate.
COUNT II
(Failure to Pay Union Dues and Liquidated Damages)
15. Plaintiffs reallege paragraphs 1 through 14 of Count I.
16. Pursuant to agreement, the Funds have been duly designated to serve as collection agents for the Union in that the Funds have been given the authority to collect from employers union dues which have been or should have been deducted from the wages of covered employees.
17. Notwithstanding the obligations imposed by the Agreement, the Company has failed to submit reports and union dues that were or should have been withheld from the wages of its employees performing covered work for the periods of December 2007 forward, thereby depriving the Union of income and information necessary to determine dues submission compliance.
18. Pursuant to the terms of the Agreement, dues which are not submitted in a timely fashion are assessed 10 percent liquidated damages.
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19. Pursuant to the Agreement and 805 ILCS 5/1 et seq., the Company and Wilson are liable to the Funds for the unpaid union dues, liquidated damages, reasonable attorneys’ fees and costs as the Union’s collection agent, and such other legal and equitable relief as the Court deems appropriate.
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment against Defendants Cleanique Services, Inc., and Kenneth Wilson, individually, ordering them to submit current dues reports and dues, submit their books and records to the Funds for an audit for the period of January 1, 2007 forward, ordering them to pay any union dues revealed as due and owing on the delinquent reports and audit together with all late fees, attorneys’ fees and costs, and any other legal and equitable relief as the Court deems appropriate.
February 29, 2008 Patrick T. Wallace Jerrod Olszewski Christina Krivanek Amy N. Carollo Charles Ingrassia Laborers' Pension and Welfare Funds Sub Office, 111 W. Jackson Blvd., Suite 1415 Chicago, IL 60604
(312) 692-1540
Respectfully submitted, Laborers’ Pension Fund, et al.
By:
Charles Ingrassia
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rax J ron «= LEBVOIRECEID LMDVUNO Fine wort 1 AN II Io ere ome ~ae Whee cer ur war roren -a- ~
CONST RUCTION & GENERAL LABORERS’
DISTRICT COUNCIL OF CHICAGO AND VICINITY
AFFILIATED WITH THE LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO
TOT BURR RIDGE PARKWAY = SUITE 390 © BURR RINIGE, Hl 60527 © PHONE: 650/655-6789 » FAX: EMYESS-HE5S INDEPENDENT CONSTRUCTION. INDUSTRY COLLECTIVE BARGAINING AGREEMENT ad Clean 5: ev - C Employer") arte Coretriction and District Cowell of Chatego and Vicinity, Laborers’ Gilt Anesicn ‘Aiverica, AFLSCHO Clnion), represeriting and encovinekiing its affiliated Loca 2.4, & 8 26, 75, 78, WE, 198 140, 162, 276, 260-098, B62, 651, 1001, 300 1006, 1082. tga fh ay ober tac oho, a iy care ffaacon oc aad eteanprty tv zanslae Cak ae Ori, Gane, Kenda, Kare, WcHenty and Boone cnet, Windle,
2. Labor Contract. The E i poner parse onto ve ont ge wn a nm fa : i Coatracias Aocomated ty She oes o cs meg cfirae8 ict nw a eee Fag oan te Gaon a Ral the Agsociation, and all
3. Done Crack. a a mn end pre nacht mentee Stu anpey even hare, pment osc om smo ba ony ome ta tO) ay oe ahi ene araployens’ individus! hours, wages and deducted amtqunts for the monthly rot marth following the 2d Geductlors wore made. (1 is the parties’ intention that these deductions contply wtih os romparsenents ol Saeton Si7ic}(4) af tha Labor Management Raéatiors Act of 1947, as emanded, and such cuneate by art rt maar Geter we a wich deductions are (ede, which stall eat 6 irravoca- Se ioea period of mocy than one year or beyond the lerminalion date ef fire labor agreement, whichever o6tiars S00AEC
4. Work gereciction. The Apoemece COVE AR Work Waban the Unis woe Jneiction 25 et fart in the Unou's Sktrnort of dutrtion, Cael a nti an Ee ES ee ee ee aaentlons fe unnpre vee incatperstd by reterency a Oe The Esnoloves shal ‘Seseribed thertin te its Union-represtnted Laborer jones of IMs ansignovant. Nether the Emoloyar for ite egrmess i sea eran are-notacn nr entero enor fe opp oF mechanism except upon wii aby and ga Unlon. The Ernployer, whether acting x3 8 contracter, gener MRARAQST Of eve, eto cont or sean a was bo ew We bo corenct painting os roptit of 2 bulidtng, rirudture or othes work and coming within ths above-described iiacicton cf tha trvan to waren qenaest aarti Ment of employees’ wages and other benefits euied under tis hanorment nctading reasonable storeys aa I Oy ecaans Rerect Banstits. Tha Employer agrees %. aout ae or ay vd i Coc go aremecs o thHth treDaparnent of momemienctters de eer ne? , the Laborers’ Pantion Fund finchdi ches an eseerrant eee eae te bu bound by tn Agreements and Aeroansonts in eect when the contributions were made, acknéwledging the raport forrs th be 2 sufficient inetrucnant i went to biod we Eola: tothe aochicabts aaresTownts, rt rin re epee Un ray Ht tar Dd RU exceeding one hundred where decumiis'y to airy Exnpigyer compliance with tte obligations.
Whats LabU‘ts cowed by is Agree pear veork outside the Chicago ares, the Employer shell, Covered under a Socal LIUNA-afitidted labor agracment in the area, contsitesty tp the local fringe benefic Aunds. ia the aenosins ant forth in the focal agreement, Otherwiea, it shail remit all frifigs benefit fund contributions in the Saourt: and 16 the funds £8 raguteed under thes Aatennent.
8. Wages aad badustry Funds. The Emplayer shail pay all the negotiatnd heneht and na canteens i fs hound t.pay anlar fhe aoe houry wages, tage industry fy! a ane cable Coleco Bargaiing Agioamoats inching. where appa, costixddons to tothe Chicago-Area LECET snd caaignated Spek Ut ee cortetocs as be to MCF unless congented to and upon writin deco Kond ty Wrkan, AB aoe wae Sat Gves chechitl, ahd tings ee ial eas a state sry ‘2001 shut! be incorporated into this Agrienent. The Channa trea Bs 5 gh ABSA od apron es neg ion nee coniniton, Shows dw Em ta o cnn wi ten with aty binding grievance meqgh whether by crievance-comablration, X fal be Buble cout tn pa i candy Un st F Nrareretancing ryt Abthing , apbeortracting in Violation hereof, or with 2 aoard. The Employer's violation of any provision of thes parsaraph will eive the Uaion the gt ke ay oe nea rote acon Pe i nt cd renee ie ie 1s exprestly undersived wo vaderstoad ard agreed that tha Union's rigitt to take sconomie action f2 In addition ta, and net in ley of, ict cights unter the grievance procedures, Where necessary to correct Contract violatiags, or where a0 acceptable steward is ee Ee ee ee a ee taint ennai 8, Successom. Jo event ot any csga in the crest, tranegernen or opesaion ofthe Employers. winter Of Suntan ay ihe wis oe oo ober Rie goroed Tid 35 8 Coeedtion of Such + traneter that tha new owner of manager, whether incisal, wal be Fay Do by the terms and conditions of Agreement. The Seagiore shal provide no ess Gan wn (10) aye peor wit notice to ta Union Of tea sae or barat and chat arte ok wapenaes Peurtad by te Unien to enforce the terms of this paragraph. Tha Lision May strike 10 enforce the terre hereof.
9. Termination. This rie Acronemer sea condi 16 Ba force and tit roms Jane 4. 2004 200} (unfans died Otero berg 1 een fan veh and shail continue thereser unless there bas Deen ghvin vein sone, by ceitised mad by eh party re ac rn Mays print to the expiration dale, Of the desire to madily.or amend Ironmen. genoa i sahoaag Soke isa mene abe dw ew area-wide nase sted aprentoents With Pr various ca adveaeg menoheccPte and thereaties forte Coston soeaesbe aavvoeresolep a ety nate pe ‘Gros. peinel bow +” 10. Ellecution, The Em Soe eterno ce oe asec nena sane exkjen receipt of x copy of tho complete Jott i Aarennent, .
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somes Soe aera Seen ak ae ape bore homes evact ~~ Cofectivs Bargaining Contract Enforcernent. AB orieuancet hevinstder shall, a1 the Unign's discrstog, be sebsvtted tothe Chicane Ditrct Cound ievsace Comets tor fl nt , EXHIBIT tabbies” Se TE ET eauces
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