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Trustees of the Chicago Plastering Institute Pension Trust v. R.G. Construction Services

September 30, 2009

TRUSTEES OF THE CHICAGO PLASTERING INSTITUTE PENSION TRUST, THE CHICAGO PLASTERING INSTITUTE HEALTH AND WELFARE TRUST, THE JOURNEYMEN PLASTERERS' P.&B. SOCIETY LOCAL NO. 5 APPRENTICE FUND, THE CHICAGO PLASTERING INSTITUTE, BY AND THROUGH JOHN MANLEY AND AS AGENT FOR THE CHICAGOLAND CONSTRUCTION SAFETY COUNCIL AND THE JOURNEYMEN PLASTERERS' PROTECTIVE AND BENEVOLENT SOCIETY OF CHICAGO LOCAL NO. 5, PLAINTIFFS,
v.
R.G. CONSTRUCTION SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Susan E. Cox United States Magistrate Judge

Magistrate Judge Susan E. Cox

Memorandum Opinion and Order On June 16, 2009, after a week long bench trial and the submission by the parties of their proposed findings of fact and conclusions of law, this Court entered its findings and conclusions on liability, pursuant to Federal Rule of Civil Procedure 52. In that ruling we found in favor of plaintiffs and against defendant, R.G. Construction Services, Inc. ("RG") for contributions owed to employee benefit plans.*fn1 Now before the Court are the parties supplemental statements on damages. For the reasons outlined below, we now enter judgment in favor of plaintiffs in the amended amount of $1,208,635.36. The Court assumes familiarity with its June 16, 2009 ruling and uses those same abbreviations here.

Analysis

Plaintiffs claim that they are entitled to $1,208,635.36 (as amended from their original claim of $1,232,352.02) in damages, in addition to their reasonable attorneys' fees, pursuant to 29 U.S.C. §1332(g)(2). Their damages calculations consists of claims for: (1) delinquent contributions and dues; (2) interest on all delinquent contributions; (3) double interest on delinquencies to ERISA funds; (4) liquidated damages on delinquencies to non-ERISA funds; (5) prejudgement interest on dues, and; (6) auditors' fees.

In its most recent response, RG argues that the plaintiffs' claim for damages should be reduced by $262,829.65. (This is the number the Court calculated after adding up all of the individual reductions RG has requested. Though it should be noted that RG's sur-reply brief, in contradiction, claims that plaintiffs have only overstated their damages by $185,423.41). RG's requested reductions are for: (1) hours worked by Mike Molloy when he was an estimator (because such work is not covered by the Local 5 CBA); (2) bonus hours; (3) claims for Robert Frustini, Robbie Marshall and Tomas Tunkevicious, for time accounted for with paystubs; (4) findings on dues that do not have authorizations; (5) hours worked in Kankakee; (6) hours for certain alleged Lake County plasterers; (7) prejudgment interest; and (8) audit fees. The court will briefly address each requested reduction.

A. Hours worked by Mike Molloy

First, RG argues that plaintiffs improperly included hours for Mike Molloy in the Final Audit Report. Plaintiffs assert, however, that they already removed all Molloy hours for the period of time he worked as an estimator because plaintiffs agree that Mr. Molloy's hours as an estimator, a non-covered position, should not be included in the audit report. But, plaintiffs contend, the period from April 1995 to May 1996 show that RG reported him as a plasterer and that he was, in fact, performing plastering work. Plaintiffs also point to support in the record for this contention.*fn2 RG, in contrast, does not offer any support for its claim, other than the blanket statement that this Court ordered Plaintiffs to remove claims on behalf of Mr. Malloy. We did. But plaintiffs have already complied by removing Mr. Molloy's non-covered hours, when he worked as an estimator. The Court, therefore, denies RG's request to reduce damages in the amount of $3,853.51 for findings attributed to Mr. Molloy.

B. Bonus Hours

Second, RG argues that plaintiffs have not sufficiently removed bonus hours from the audit report. Specifically, the dispute comes down to whether plaintiffs' reduction of $15,964.36 for bonuses paid to Mark Johnson, Steven Nelms, and John Shannon, is correct. Or, whether RG's claim that the reduction should be $16,513.98 is correct. From the submissions of the parties, the court is unable to determine which calculation is correct, but the difference amounts to only $549.64. RG does not attempt to explain the discrepancy. Plaintiffs only provide that the bonus received by Mr. Nelms was only $3,000, not the $5,000 alleged by RG. Plaintiffs also provide a document that lists RG's bonuses, a document that was originally produced during the audit and at trial. It shows Mr. Nelms' bonus for that year to be, in fact, $3,000. (In a footnote, separate from their argument on bonus amounts but in the same brief, RG agrees that Mr. Nelms' bonus was $3,000 in 1999. In that footnote, RG then asserts that $75.39 should be removed from plaintiffs' damages, not $549.64. This could not be more confusing.) Because plaintiffs have provided support for their position, the Court will adopt plaintiffs' calculations. RG's request for a further reduction is, thus, denied.

C. Paystubs

Third, RG claims that plaintiffs failed to remove all hours in the unknown period accounted for by paystubs, specifically with respect to Robert Frustini, Robbie Marshall and Tomas Tunkevicious. RG identifies the paystub amounts in exhibits it attaches to its response brief. These exhibits are RG's recreation of the auditors' Final Audit Report. In these documents, RG has highlighted items (e.g. hours and amounts) that it claims should be removed. With respect to paystubs, RG asserts that 43.25 hours should be subtracted, warranting a reduction in damages of $1,270.30. The problem is, we have no idea how, or whether these paystubs were already accounted for in some way in plaintiffs' calculations for the unknown period. So again, what RG is asking the court to do is that which is more appropriately left to an auditor. We simply cannot redo the audit to determine if a more beneficial calculation, applying these paystubs, could be obtained. As explained by plaintiffs, RG presented paystubs for these individuals for certain time periods in the unknown period, but those paystubs did not eliminate the possibility for delinquencies. So the auditors were left to make an estimated determination. We must refer back to what we stated previously, without complete payroll records some assumptions had to be made. And because assumptions were made, the audit lacked "'the exactness and precision of measurement that would be possible had [RG] kept records...'"*fn3 That fact does not warrant a rejection of the auditors' findings.*fn4

The court, therefore, denies RG's request to reduce the audit report by $1,270.30.

D. Dues Authorizations

Fourth, RG requests a reduction in damages of $5,796.51 for findings on dues without authorizations. Plaintiffs have already, however, conceded that the auditors inadvertently failed to remove claims for 38 individuals and, as a result, have since reduced the final audit by $4,039.27 in dues and $3,713.87 in pre-judgment interest. The Court finds no reason to mis-trust plaintiffs' calculation, nor has RG presented us with any reason to do so. It appears, rather, that RG continues to request this reduction solely on the basis of what RG claims is "plaintiffs' misrepresentation." That would, however, be unnecessarily punitive. Because plaintiffs have already removed ...


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