The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on the motion of Plaintiff Trustees of the Glaziers, Architectural Metal and Glass Workers Local Union No. 27 Welfare and Pension Funds ("the Funds") for summary judgment in its favor. For the reasons set forth below, the motion is granted in part and denied in part.
Defendant Affordable Glass & Mirror, Inc. ("Affordable"), is an Illinois corporation located in Park Ridge, Illinois. It was formed in 1996 by its president, sole shareholder, and sole employee, Robert Strom. Affordable Glass installs shower doors and mirrors. On May 16, 2003, Affordable assigned its bargaining rights to the Association of Glazing Contractors ("Association") and agreed to be bound by the terms of the Association's contract with Glaziers, Architectural Metal and Glass Workers Local Union No. 27 ("Local 27") and the International Union of Painters and Allied Trades ("the International"), Painters District Council #14 (collectively referred to herein as "the Union"). Article 20 of the collective bargaining agreement ("CBA") in effect between the Association and the Union from June 1, 2006, to May 31, 2009, provided that employers were required to make specified contributions to the Funds. Ex. 3 to Pl.'s Ex. 5, Art. 20. For persons performing bargaining unit work, the contribution was calculated based on number of hours worked. Id. Contributions were also required for employee/owners, partial owners, direct relatives, husbands, wives, brothers, sisters, sons, or daughters "performing work of a type included or not included within the jurisdiction of [the contract], including but not limited to supervision, general management,...clerical or maintenance work" for a minimum of 160 hours a month. Id.
In February 2007, the Funds filed the instant suit, seeking an audit and judgment for any deficiencies found during the audit. The complaint also requested liquidated damages, costs, and attorneys' fees. A few months later, a compliance audit was conducted of Affordable's records for the period of January 1, 2004, through March 31, 2007. The audit materials submitted by the parties are not clear as to the findings for that time period. The affidavit of the auditor states that the audit report found arrears owing to the Funds in the amount of $1,568 in benefits, $235.20 in liquidated damages, and $340.00 in audit costs. However, the itemization yielding the arrearage amount indicates that the contributions at issue were to be made to the International, not to the Funds as the auditor's affidavit indicates.
The affidavit also contends that the liquidated damages of $5,209.31 were owed for past late contributions. By contrast, Section O of the audit fact sheet, which calls for the auditor's findings and a brief description of any delinquency, the auditor states that no delinquency was found to "Glaziers Local 27" for the period of January 1, 2004, through March 31, 2007.
The audit papers conclude with another itemization, for the period spanning April 1 to December 31, 2007. This document indicates that it tracks amounts due to the Funds, and the components of the calculations correspond to those set forth in the CBA for contributions to be made to the Funds. The sum of the unpaid contributions is $20,311.00, with additional liquidated damages of $3,046.65 (15% of the unpaid $20,311), for a total amount of $23,357.65 due to the Funds.
In August 2007, the International returned $43,192 in contributions to Affordable. The contributions, made on Strom's behalf, were designated "ineligible," though that term is not explained in the letter accompanying the refund.
The CBA provided that it would "continue in full force and effect from June 1, 2006 through May 31, 2009...unless either party shall desire to change any of the terms herein, in which case a written notice must be served to the other party not less than sixty (60) days...prior to the expiration date." Ex. 3 to Pl.'s Ex. 5, Art. 27. According to the affidavit of Mike Mabus, a trustee of the Funds since 1995 and the business manager of Local 27 since 2004, the CBA was terminated as to Affordable on December 31, 2007.
In June 2008, the Funds moved for summary judgment in its favor against Affordable on the February 2007 complaint.*fn1
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could find for the non-movant. Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). The movant in a motion for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record; if the party succeeds in doing so, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. Proc. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986). In considering motions for summary judgment, a court construes all facts and draws all inferences from the record in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986).
With these principles in mind, we turn to the ...