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T. McGann Plumbing, Inc. v. Sullivan

January 15, 2008

T. MCGANN PLUMBING, INC., PLAINTIFF,
v.
JAMES T. SULLIVAN, NOT INDIVIDUALLY BUT AS TRUSTEE OF PLUMBERS' PENSION FUND, LOCAL 130, U.A., ETC. ET AL., DEFENDANTS.



The opinion of the court was delivered by: David H. Coar United States District Judge

HONORABLE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Before this Court are Plaintiff T. McGann Plumbing, Inc.'s motion for judicial notice; Plaintiff's motion for summary judgment; and Defendants James T. Sullivan as Trustee for Plumbers' Pension Fund, Local 130, U.A. et al.'s motion for summary judgment. For the reasons set forth below, Plaintiff's motion for judicial notice is DENIED; Plaintiff's motion for summary judgment is DENIED; Defendants' motion for summary judgment is DENIED, with certain issues foreclosed for the purposes of trial.

I. FACTS

T. McGann Plumbing, Inc. ("Plaintiff") is an Illinois corporation with its principal place of business in this district, and is an employer within the meaning and definition of 29 U.S.C. §152(2). On November 29, 2006, T. McGann Plumbing, Inc. filed this action, pursuant to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. §185(a) and 28 U.S.C. §1331, to vacate a Decision and Award issued by the Joint Arbitration Board against James T. Sullivan, as Trustee of Plumbers' Pension Fund, Local 130, U.A. ("Pension Fund"), Plumbers Welfare Fund, Local 130, U.A. ("Welfare Fund"), Trust Fund for Apprentice and Journeyman Education and Training, Local 130, U.A. ("Education Fund"), and Chicago Journeymen Plumbers' Local Union 130, U.A. ("Union"), Group Legal Services Plan Fund ("Legal Fund") (collectively, "Benefit Funds" or "Defendants").

There was in effect on and after April 1, 2000, a written collective bargaining agreement ("1995 CBA") between Plaintiff and the Union. The 1995 CBA covered the period June 1, 1995 through May 31, 2001. The 1995 CBA was extended from June 1, 2001 to May 21, 2004 ("2001 CBA") and from June 1, 2004 through May 31, 2007 ("2004 CBA") (collectively, "the CBA"). Section 1.6 of the CBA provides for Union and Benefit Funds to conduct audits to verify Plaintiff's compliance with the CBAs. As authorized by the CBAs, the certified public accounting firm of DM Siegel, Ltd. audited Plaintiff's books and records to confirm Plaintiff's compliance with those CBAs from the period of April 1, 2000 through June 30, 2004.

Plaintiff received a cover letter dated April 30, 2005 from D.M. Seigel, Ltd. ("Siegel") which contained a Compliance Report to the Trustees, Plumbers' Benefit Funds, Local 130, U.A. ("Compliance Report") for the period covering April 1, 2000 to June 30, 2004. According to Thomas McGann, the Vice President to T. McGann Plumbing, Inc., the Compliance Report indicated that Plaintiff owed contributions and deductions in the amount of $73,877.80 plus liquidated damages and interest in the amount of $30,4441.65, totaling $104,319.45. Defendants disagree that the Compliance Report was limited to contributions and deductions. Plaintiff disputed the Compliance Audit findings.

On May 31, 2006, Plaintiff received notice from the JAB that a hearing would be held on June 21, 2006 regarding "Violations of the Collecting Bargaining Agreement including the audit for the periods from April 01, 2000 through June 30, 2004." The hearing was continued to July 26, 2006. Plaintiff, by and through its president, Sharon McGann, and its vice-president, Thomas M. McGann, appeared at and participated in the JAB hearing. The JAB present at the hearing consisted of five members from the Plumbing Contractors' Association of Chicago and Cook County, and four members from the Union.

On August 30, 2006, the JAB issued its Decision and Award ("Award"), wherein the JAB ruled that Plaintiff had violated the CBA during the period from April 1, 2000 through June 30, 2004. The Award required Plaintiff to pay $83,455.53, and costs and fees for failure to pay by September 29, 2006. Defendants claim Plaintiff received the Award on August 30, 2006. Plaintiff claims it received the Award on August 31, 2006.

Plaintiff has not paid the amounts required by the Award, and has filed the present action asking this court to vacate the Award.

II. LEGAL STANDARD

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, along with any affidavits, show there is no genuine issue of fact. Such a showing entitles the moving party to judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Lucas v. Chicago Transit Authority, 367 F.3d 714, 720 (7th Cir. 2004). A genuine issue of material fact exists only when a reasonable factfinder could find for the nonmoving party, based on the record as a whole. The court does not weigh the evidence and it does not make credibility determinations. Instead, the court makes all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 436 (7th Cir. 2000). If a party fails to present proof on an essential element of his or her case, then all other facts become necessarily immaterial. Ribando v. United Airlines, Inc., 200 F.3d 507, 509 (7th Cir. 1999).

III. ANALYSIS

A. Judicial ...


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