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Trustees of the United Union of Roofers and Waterproofers Allied Workers' Local 112 Money Purchase Pension Plan v. CR Partners

June 30, 2009

TRUSTEES OF THE UNITED UNION OF ROOFERS AND WATERPROOFERS ALLIED WORKERS' LOCAL 112 MONEY PURCHASE PENSION PLAN, PLAINTIFF,
v.
CR PARTNERS, LTD, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

Two damages disputes remain in this case.

The Plan's summary judgment is granted regarding the delinquency amount and liquidated damages.

The Court defers ruling on the issues of interest, costs, and attorney fees, pending further documentation.

In a prior order, this Court held that Capitol Roofing and CR Partners constituted a single employer. The Plan now moves for summary judgment on damages.

Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Two issues are contested here.

The first dispute regards the amount of the deficiency in contributions and, by extension, the amount of liquidated damages (which is based upon the delinquency amount). An audit of Capitol Roofing revealed contribution deficiencies of $67,023.24. Agreeing with a number of CR Partners' challenges to this number, the Plan reduced the amount sought by $11,054.66, bringing the total to $55,968.58.

CR Partners, however, argues that a further reduction of $15,579.69 is necessary based on the inclusion of certain types of "shop" work.

Facially, the Collective Bargaining Agreement covers all shop work. Article IX, Section 1 defines "regular work day[s]" and "regular work week[s]" to include time "whether in a shop or on the job" and requires that "[a]ll labor performed during the hours specified herein... shall be recognized as regular time...." Compl. Ex. A (CBA, Art. IX, § 1).

But a course of dealing can alter the terms of the CBA. Matuszak v. Torrington Co., 927 F.2d 320, 324 (7th Cir. 1991). CR Partners argues that such an alteration occurred here. The evidentiary basis for this assertion derives wholly from a five-paragraph affidavit from Robert Sidener, a partner in CR Partners. He avers that:

4. Through a course of dealing between the Defendant and Plaintiffs of approximately 8 years, work "in a shop," as work covered by the Collective Bargaining Agreement, does not include the sweeping of floors or the performance of similar cleaning work or of other menial work.

5. Of the Plaintiffs' claimed damages of $55,968.58, such work not covered by the Collective Bargaining Agreement represents $15,579.69. After subtraction of this amount, the Defendant owes contributions of $40,388.89.

Sidener Aff ¶¶ 4-5.

The Plan objects, asserting that these bare allegations are insufficient to defeat a summary judgment motion supported by an ...


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