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TRUSTEES OF THE PAVERS AND ROAD BUILDERS DISTRICT COUNCIL WELFARE, PENSION, ANNUITY AND APPRENTICESHIP, SKILL IMPROVEMENT AND SAFETY FUNDS et al v. NAMOW, INC. et al

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Case Number: 
1:15-cv-06640 Search Pacer
ACE Group party(s): 
Opposing Party: 
Trustees of the Pavers and Road Builders District Council Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Safety Funds
Court Type: 
Federal
US District Court: 
Eastern District of New York
Date Filed: 
Nov 19 2015

NATURE OF THE ACTION

  1. This is a civil action brought pursuant to Sections 502(a)(3) and 515 of the
    Employee Retirement Income Security Act (“ERISA”) of 1974, as amended, 29 U.S.C.
    §§ 1132(a)(3), 1145, and Section 301 of the Labor-Management Relations Act
    (“LMRA”) of 1947, 29 U.S.C. § 185, by multiemployer welfare and pension funds
    through their respective Boards of Trustees, and by a labor union, to collect delinquent
    employer contributions to employee benefit plans and dues check-offs and other
    contributions that an employer was required to withhold from its employees’ pay and

forward to the union.

JURISDICTION AND VENUE

  1. This Court has subject matter jurisdiction over this action pursuant to
    Sections 502(e)(1) and (f) and 515 of ERISA, 29 U.S.C. §§ 1132(e)(1) and (f) and 1145;
    Section 301 oftheLMRA, 29 U.S.C. § 185; and 28 U.S.C. § 1331.
  2. Venue is proper in this district pursuant to Section 502(e)(2) of ERISA, 29
    U.S.C. § 1132(e)(2), and Section 301 oftheLMRA, 29 U.S.C. § 185.

THE PARTIES

  1. Plaintiffs Trustees of the Pavers and Road Builders District Council
    Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Safety Funds (the
    “Funds”) are employer and employee trustees of multiemployer labor-management trust
    funds organized and operated in accordance with section 302(c) of the LMRA, 29 U.S.C.
    § 186(c). The Funds are employee benefit plans within the meaning of section 3(3) of
    ERISA, 29 U.S.C. § 1002(3), and are administered at 17-20 Whitestone Expressway,
    Suite 200, Whitestone, New York 11357.
  2. Plaintiff The Highway, Road and Street Construction Laborers Local
    Union 1010 (the “Union”) is a labor organization within the meaning of Section 301 of
    the LMRA, 29 U.S.C. § 185, and represents employees in an industry affecting commerce
    as defined in Section 502 of the LMRA, 29 U.S.C. § 142, and Section 3(4) of ERISA, 29
    U.S.C. § 1002(4). The Union maintains its principal place of business at 17-20
    Whitestone Expressway, Suite 200, Whitestone, New York 11357.
  3. Upon information and belief, defendant Namow, Inc. (“Namow”) is a
    corporation incorporated under the laws of the State of New York, with its principal place

of business at 244 Stony Hollow Road, Greenlawn, New York 11740 engaged in the
construction business.

  1. Upon information and belief. Defendant Westchester Fire Insurance
    Company (“Westchester”) is a corporation incorporated under the laws of the State of
    New Jersey, with its principal place of business at 10 Exchange Place, Jersey City, New
    Jersey 07302.

FACTS

The Collective Bargaining Agreement

  1. At relevant times herein, Namow was a party to, or manifested an
    intention to be bound by, a collective bargaining agreement (the “CBA”) with the Union.
  2. The CBA requires Namow to contribute to the Funds and related entities
    on behalf of which they act as collection agents on or before the 35th day after the close
    of a calendar month in amounts determined by multiplying specified hourly contribution
    rates by the number of hours of employment of Namow employees within the trade and
    geographical jurisdiction of the Union (“Covered Work”).
  3. The CBA further provides that Namow must make specified contributions
    to the Funds and forward specified dues check-offs and other contributions to the Union
    for each hour of Covered Work performed by Namow’s employees.
  4. Pursuant to the CBA, if an employer fails to pay fringe benefits when due,
    the employer is liable to the Funds for interest on the amount of unpaid fringe benefits at
    an annual rate of 10%.
  5. Pursuant to the CBA, in the event the Funds are required to employ an
    attorney to collect the fringe benefits due and owing, Namow is obligated to pay to the
    Funds its attorneys' fees.
  6. The CBA provides, inter alia, “The Employer is bound by all of the terms
    and conditions of the Agreements and Declarations of Trust with respect to the Welfare
    Fund, Pension Fund, Training Fund and Annuity Fund, which Agreements and
    Declaration of Trusts are hereby made part of this Agreement and are incorporated
    herein.”
  7. The Trust agreements provide that in operating and administering the
    Fund, the Board of Trustees shall have the power to “establish the policy and rules
    pursuant to which this Agreement and Plan are to be operated and administered, including
    the rules relating to the collection of contributions and other payments.”
  8. Pursuant to the Trust agreements, the Trustees of the Funds have
    promulgated a Policy for Collection of Delinquent Fringe Benefit Contributions
    (“Collection Policy”). Accordingly, Namow is bound to the terms of the Collection
    Policy.
  9. Article II of the Collection Policy provides that if Namow fails to make
    contributions when due, Namow is liable to the Funds for liquidated damages of 20% of
    the amount of the unpaid contributions.
  10. Section 301 of the LMRA, 29 U.S.C. § 185, authorizes this Court to
    enforce the CBA. In addition, section 515 of ERISA provides that “[e]very employer
    who is obligated to make contributions to a multiemployer plan under the terms of the
    plan or under the terms of a collectively bargained agreement shall, to the extent not

inconsistent with law, make such contributions in accordance with the terms and
conditions of such plan or such agreement.” 29 U.S.C. § 1145.

  1. Upon information and belief, Westchester issued a bond (the “Bond”) to
    Namow insuring payment of wages and benefits to all laborers furnishing work
    performed for Namow.

The Audit

  1. The CBA further requires Namow, inter alia, to furnish its books and
    payroll records when requested by the Funds for the purpose of conducting an audit to
    ensure compliance with required benefit fund contributions.
  2. The CBA provides that if the Funds conduct a payroll audit which reveals
    unreported and delinquent benefit contributions, the employer is liable for the cost of the
    audit.
  3. Pursuant to the CBA, the Funds conducted an audit of Namow covering
    January 1, 2011 through June 30, 2014. The auditor determined that Namow failed to
    report and make contributions in the principal amount of $120,234.31, of which
    $1,052.80 remains outstanding.
  4. Pursuant to the CBA, the documents and instruments governing the Funds,
    and sections 502(g)(2) and 515 of ERISA, 29 U.S.C. § 1132(g)(2) and 1145, Namow is
    liable to the Funds for contributions in the amount of $1,052.80 on the audit for the
    period January 1, 2011 through June 30, 2014, interest on the fringe benefits at an annual
    rate of ten percent (10%), liquidated damages of twenty percent (20%) of the principal
    amount of the delinquency, and all reasonable attorneys’ fees, expenses and costs
    incurred by Plaintiffs in prosecuting this suit.

Delinquent Contributions

  1. The CBA provides that Namow must make specified contributions to the
    Funds and forward specified dues check-offs and other contributions to the Union for
    each hour of Covered Work performed by Namow’s employees.
  2. The CBA further requires Namow, inter alia, to report to the Funds the
    number of hours of Covered Work performed by each employee.
  3. Namow failed to remit contributions for Covered Work performed by each
    employee for April 2015 in the amount of $19,851.30 and dues check-offs and other
    contributions owed to the Union in the amount of $604.29.
  4. Namow also failed to report the number of hours of Covered Work
    performed by each employee and to submit contributions for Covered Work performed by
    each employee for May through September 2015.
  5. Namow also owes interest for previous late payments of contributions in
    the amount of approximately $10,573.74.
  6. Pursuant to the CBA, the documents and instruments governing the Funds,
    and section 502(g)(2 and 515 ERISA, 29 U.S.C. §1132(g)(2) and 1145, Namow is liable
    to the Funds for contributions in connection with all Covered Work performed by its
    employees for April 2015 in the amount of $19,851.30, for dues check-offs and other
    contributions owed to the Union for April 2015 in the amount of $604.29, contributions
    for May through September 2015, in an unknown amount, for dues check-offs and other
    contributions owed to the Union for May through September 2015, in an unknown
    amount, interest for previous late payments of contributions in the amount of $10,573.74,
    interest on the fringe benefits at an annual rate of ten percent (10%), liquidated damages

of twenty percent (20%) of the principal amount of the delinquency, and all reasonable
attorneys’ fees, expenses and costs incurred by Plaintiffs in prosecuting this suit.

FIRST CLAIM FOR RELIEF

  1. Plaintiffs repeat the allegations set forth in paragraphs 1 through 28 above
    and incorporated them herein by reference.
  2. A payroll audit of Namow’s books and records was completed covering
    January 1, 2011 through June 30, 2014. The audit revealed that Namow owed the Funds
    delinquent contributions in the amount of $120,234.31 in connection with Covered Work
    performed by its employees from January 1, 2011 through June 30, 2014, of which
    $1,052.80 remains outstanding.
  3. Namow has failed to pay the remaining balance of the audit findings, and
    by reason thereof the Funds have been damaged in said amount.
  4. Accordingly, pursuant to the CBA, the documents and instruments
    governing the Funds, and sections 502(g)(2) and 515 of ERISA, 29 U.S.C. § 1132(g)(2)
    and 1145, Namow is liable to the Funds for contributions in the amount of $1,052.80 on
    the audit covering the period January 1, 2011 through June 30, 2014, interest on the
    amount of unpaid fringe benefits at an annual rate of 10%, liquidated damages in the
    amount of 20% of the amount adjudged to be due and owing, and attorneys' fees.

SECOND CLAIM FOR RELIEF

  1. Plaintiffs repeat the allegations set forth in paragraphs 1 through 32 above

and incorporated them herein by reference.

  1. Namow failed to remit contributions to the Funds for April 2015 in the
    amount of $19,851.30 and dues check-offs and other contributions owed to the Union for
    April 2015 in the amount of $604.29.
  2. Namow also failed to submit monthly remittance reports to the Funds for
    the period May through September 2015. Accordingly, Namow owes an unknown
    amount of unreported contributions and an unknown amount of dues check-offs and other
    contributions owed to the Union for May through September 2015.
  3. Namow also owes interest for previous late payments of contributions in
    the amount of approximately $10,573.74.
  4. The Funds have demanded payment of the unpaid fringe benefits.
    Defendant has refused these demands.
  5. Accordingly, pursuant to the CBA and sections 502(g)(2) and 515 of
    ERISA, 29 U.S.C. § 1132(g)(2) and 1145, Namow is liable for contributions for April
    2015 in in the amount of $19,851.30, for due check-offs and other contributions owed to
    the Union for April 2015 of $604.29, for an unknown amount of unreported contributions
    for May through September 2015, for an unknown amount of unreported dues check-offs
    and other contributions to the Union for May through September 2015, for interest on
    previous late payments of contributions in the amount of $10,573.74, interest on the
    amount of unpaid fringe benefits at an annual rate of 10%, liquidated damages in the
    amount of 20% of the unpaid fringe benefits adjudged to be due and owing, and attorneys'
    fees and costs.

THIRD CLAIM FOR RELIEF

  1. Plaintiffs repeat the allegations set forth in paragraphs 1 through 38 above
    and incorporated them herein by reference.
  2. By issuing the Bond to Namow, Westchester assumed liability to pay the
    Funds any and all Fringe Benefits due and owing to them which Namow and/or its
    subcontractors failed to pay pursuant to the CB A.
  3. Namow has failed to pay Fringe Benefits to the Funds pursuant to the
    CBA in the amount of $21,508.39 for work performed during January 2011 through April
    2015.
  4. Pursuant to the terms of the Bond, Westchester is required to make
    payment to the Plaintiffs in the amount of $21,508.39.

WHEREFORE, Plaintiffs respectfully request that this Court award judgment as

follows:

  1. On Plaintiffs’ First Claim for Relief, granting judgment to the
    Funds against Namow, for contributions in the amount of $1,052.80 on the audit covering
    the period January 1, 2011 through June 30, 2014, interest on the amount of unpaid fringe
    benefits at an annual rate of 10%, liquidated damages in the amount of 20% of the
    amount adjudged to be due and owing, and attorneys' fees;
  2. On Plaintiffs’ Second Claim for Relief, granting judgment to the
    Funds against Namow for contributions owed for April 2015 in the amount of
    $19,851.39, dues check-offs and other contributions owed to the Union for April 2015 in
    the amount of $604.29, an unknown amount of unreported contributions for May through
    September 2015 to be determined at trial, an unknown amount of dues check-offs and
    other contributions to the Union for May through September 2015 to be determined at

trial, interest on previous late payments of contributions in the amount of $10,573.74,
interest on the unpaid fringe benefits, liquidated damages in the amount of 20% of the
amount adjudged to be due and owing, attorneys' fees and costs;

  1. On Plaintiffs Third Claim for Relief, granting judgment against
    Westchester in the amount of $21,508.39; and
  2. Awarding Plaintiffs such other and further relief as the Court may

deem just and proper.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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