OVERVIEW: Plaintiffs brought an action pursuant to the Employee Retirement Income Security Act § 301 and the Taft-Hartley Act, to recover on statutory and contractual obligations to make required contributions to funds and to remit dues checkoffs and political action committee contributions deducted from the wages of employees. The court found in favor of plaintiffs. On the issue of damages, the court found that the collective bargaining agreements (CBAs) in effect during the relevant period required defendants to employ only Mason Tenders to tend masons and do asbestos work. The court therefore found that the employer was obliged to make plan contribution in respect of all of the workers listed as mason tenders and asbestos workers, as those workers performed covered work. The CBAs cover an astonishingly broad array of tasks, many having nothing to do with tending bricklayers and masons. Accordingly, the court found that all of the work performed by everyone described on the certified payrolls as a laborer also was covered. Thus, the court determined that the total contributions owed.

OUTCOME: Court determined total contributions owed, based on its finding that the employer was obliged to make plan contribution in respect of all of the workers listed as mason tenders, asbestos workers, and laborers.

CORE TERMS: mason, laborer, asbestos, payroll, obliged, bricklayers, tending
 


COUNSEL:  [*1]  For MASON TENDERS DISTRICT COUNCIL, WELFARE FUND, PENSION FUND, ANNUITY FUND, TRAINING PROGRAM FUND, NEW YORK STATE LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, NEW YORK LABORERS' HEALTH AND SAFETY TRUST FUND, BUILDING CONTRACTORS ASSOCIATION INDUSTRY ADVANCEMENT PROGRAM, JOHN J. VIRGA, ANTHONY SILVERI, plaintiffs: Lawrence A. Kravitz, Gorlick, Kravitz & Listhaus, P.C., New York, NY.
 
For EMPIRE STATE RENOVATION CORP., JERZY SZYMCZYK, defendants: Thomas D. Czik, Thomas D. Czik & Associates, Garden City, NY.

JUDGES: Lewis A. Kaplan, United States District Judge.

OPINIONBY: Lewis A. Kaplan

OPINION: ORDER
 
LEWIS A. KAPLAN, District Judge.

This is an action pursuant to ERISA and Section 301 of the Taft-Hartley Act on behalf of an employee welfare benefit fund, an employee pension benefit fund, other funds, and the Mason Tenders District Council of Greater New York and Long Island to recover on statutory and contractual obligations to make required contributions to the funds and to remit dues checkoffs and political action committee contributions deducted from the wages of employees who authorized such deductions against Empire State Renovation Corporation ("Renovation"),  [*2]  Empire State Restoration Corporation ("Restoration"), and Jerzy Szymczyk. The claim against Restoration was severed and stayed. The case against the other two defendants was tried to the Court on May 19, 2000. At the conclusion of the trial, the Court ruled for plaintiffs against Renovation and Szymczyk as to liability but deferred determination of damages pending analysis of the voluminous payroll records received in evidence. (Tr., May 19, 2000, 122-30) The Court subsequently entertained submissions from and met with counsel to discuss the damages issues.

The crux of counsels' inability to agree on the damages due lies in the nature of the proof at trial. Plaintiffs offered in evidence many payrolls certified by defendants which list employees and the hours worked by them. The employees listed are classified into three categories: laborers, asbestos workers and mason tenders. But plaintiffs offered no other evidence as to what tasks were performed by these workers. Defendants therefore claim that there is no evidentiary basis for concluding that any, much less all, of these workers performed tasks for which they were obliged to make contributions to the various funds. Plaintiffs  [*3]  might have been well advised to offer more extensive proof. But the record before the Court is adequate to the purpose.

The question is whether it is more probable than not, based on the evidence of record, that persons described on the certified payrolls as mason tenders, asbestos workers, and laborers performed services for which the defendants were obliged to make the relevant contributions. The collective bargaining agreements ("CBAs") in effect during the relevant period required defendants to employ only Mason Tenders -- i.e., members of this union -- to tend masons and do asbestos work. (PX 1-2, Art. IV, §§ 1-4, especially §§ 1(f), 2) The Court therefore finds that the employer was obliged to make plan contribution in respect of all of the workers listed as mason tenders and asbestos workers, as those workers performed covered work.

The evidence is only slightly less strong with respect to those described as laborers. While one readily might assume that this contract covered only "mason tender work" -- that is, tending of bricklayers and masons -- the assumption would be incorrect. The CBAs cover an astonishingly broad array of tasks, many having nothing to do with tending  [*4]  bricklayers and masons. (PX 1-2, Art. IV, §§ 1-4) The contractual provision is so broad that it is difficult to imagine any task on a construction site that might be performed by anyone referred to as a laborer that would not be covered. Accordingly, the Court finds that all of the work performed by everyone described on the certified payrolls as a laborer also was covered.

Given the foregoing conclusion, it is undisputed that the total contributions owed aggregate $ 367,999.79. Plaintiffs shall settle a proposed form of judgment allocating that sum among the plaintiff funds and the Union on two days' notice.

SO ORDERED.
 
Dated: June 26, 2000

Lewis A. Kaplan

United States District Judge