GARY FEINERMAN, District Judge.
Plaintiffs Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Funds"), James S. Jorgensen ("Jorgensen"), Administrator of the Funds, and the Construction & General Laborers' District Council of Chicago and Vicinity ("Union") (collectively "Plaintiffs"), by their attorneys, state:
1. On March 20, 2014, Plaintiffs Jorgensen and the Funds filed the original Complaint in this matter under Section 301(a), Labor Management Relations Act, 29 U.S.C. § 185(a), as amended, and Section 502(a)(3) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(3), as amended, alleging that the Company failed to report and pay contributions and failed to obtain a surety bond as required by the parties' collective bargaining agreement.
2. On May 8, 2014, Plaintiffs process server, Scott Ducar, handed summons and complaint to Christopher M. Hopkins, the registered agent for Global Post Construction Cleaning Corp. ("Defendant"), at the location of 4250 216th Street, Matteson, Illinois, 60443. A copy of the notice identifying service of summons is attached as Exhibit 1 to this Motion.
3. On February 10, 2015, Plaintiffs filed their First Amended Complaint, which added the Union as a Plaintiff and terminated Christopher M. Hopkins as a Defendant. The First Amended Complaint also included an additional count seeking to confirm and enforce a final and binding arbitration award issued by the Joint Grievance Committee ("JGC") conducted pursuant to the provisions of a collective bargaining agreement ("JGC Award") between the Union and the Defendant under Section 9 of the Federal Arbitration Act, 9 U.S.C. § 9.
4. On March 11, 2015, pursuant to Plaintiffs' oral motion, the Court entered a default against Defendant pursuant to Fed. R. Civ. P. 55(a).
5. As provided by the Funds' Field Representative, Rocco Marcello, and as shown by the fringe audit report prepared by Bansley and Kiener, LLP ("Bansley") covering the period from July 1, 2012 through June 30, 2014, principal contributions are owed to the Welfare, Pension, Training, CAICA, LECET, LMCC Funds and to the Union for dues in the amount of $10,977.38. Mr. Marcello's affidavit is attached hereto as Exhibit 2, together with a copy of the fringe benefit audit report.
6. Liquidated damages and interest are due on the amounts owed to the Funds as established by paragraphs 4 and 5 of Mr. Marcello's affidavit. Liquidated damages are owed in the amount of $2,063.88 with respect to the Pension, Welfare and Training contributions set forth in the Bansley audit report. Liquidated damages of ten percent are owed with respect to the LDCMC, ISPA, LECET Funds and Union dues in the amount $65.80. Interest is also owed at the rate of 12-percent on delinquent amounts owed from the date of the delinquency through the end of February 2015. In this matter, interest has been calculated by Mr. Marcello in the amount of $1,220.20.
7. Accumulated penalties for untimely contribution payments are owed for the period from time of delinquency through the present in the amount of $2,024.63.
8. This Company owes audit fees in the amount of $1,531.82 for completion of the fringe benefit audit completed by Bansley.
9. As provided by the Union's Assistant Business Manager and Grievance Director, Martin Flanagan, and as shown by the wage audit report prepared by Bansley covering the period from July 1, 2012 through June 30, 2014 and the JGC Award, unpaid wages to employees working for the Defendant are owed in the amount of $6,259.50. Mr. Flanagan's affidavit is attached hereto as Exhibit 3, together with a copy of the wage benefit audit report. A copy of the JGC Award was attached to Plaintiffs' First Amended Complaint as Exhibit D.
10. Liquidated damages are due on the amounts awarded pursuant to the JGC Award as stated in paragraphs 8 through 10 of Mr. Falangan's affidavit and in the Award itself. Liquidated damages for the JGC Award total $3,755.70.
11. Reasonable attorneys' fees and costs are established by the affidavit of Ryan Matthew Thoma, Plaintiffs' counsel, in the amount of $10,053.50 in attorney's fees and $652.00 in costs. The affidavit of Mr. Thoma is attached as Exhibit 4.
12. According to the collective bargaining agreement, Article VI, Paragraph 1, all employers are required to procure, carry, and maintain a surety bond in an amount that is satisfactory to the Union. A copy of the relevant portion of the collective bargaining agreement is attached as Exhibit 5. This bond must be in excess of $5,000.00 to guarantee the payment of wages and contributions to the Pension and Welfare Trust Funds during the terms of the relevant agreements. As stated in the affidavit of Mr. Marcello, Defendant has failed to provide evidence that it has obtained or currently maintains the required bond. Plaintiffs therefore request that Defendant, within 60-days of the date of this judgment order, provide written proof that it has obtained such a surety bond to Plaintiffs' counsel, Ryan M. Thoma, Allison, Slutsky & Kennedy, P.C., 230 W. Monroe Street, Suite 2600, Chicago, IL 60606.
WHEREFORE, Plaintiffs respectfully request this Court enter a judgment against Defendant consistent with Plaintiffs' drafted a proposed judgment order for a total judgment against in the amount of $39,211.91, and also direct the Company to obtain and maintain a surety bond to guarantee payment of wages, Pension and Welfare contributions as required by the Agreement.
Rocco Marcello, first duly sworn on oath, deposes and states as follows:
1. I am a Field Representative employed by the Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity ("Laborers' Funds"), one of the Plaintiffs in the above referenced action. My responsibilities include oversight of the collection of amounts owed by Global Post Construction Cleaning Corp. ("Defendant" or "Company"). This affidavit is submitted in support of the Plaintiffs' Motion for Damages.
2. Global Post Construction Cleaning Corp. has been a signatory employer since May 3, 2010, as reflected by the Funds' records and as shown by the collective bargaining agreement to which the Defendant is a signatory. A true and correct copy of the agreement between the Company and the Construction and General Laborers' District Council of Chicago and Vicinity and its affiliated local ("Union") is on file with the Funds and was attached to the Plaintiffs' First Amended Complaint as Exhibit A.
3. I am aware that the Company submitted its books and records to the Funds' designated auditors from the firm of Bansley and Kiener, LLP, ("Bansley") who prepared an audit a report dated November 18, 2014, reflecting unpaid contributions owed for the period from July 1, 2012 through June 30, 2014. I reviewed the report, which shows that principal contributions are owed to the Welfare, Pension, Training, CAICA, LECET, LMCC Funds and to the Union for dues in the amount of $10,977.38. A true and correct copy of the audit report is attached to this affidavit.
4. The respective Agreements and Declarations of Trust of the Laborers Funds, to which the Defendant is bound require payment of liquidated damages in the amount of 20-percent of the principal for the Welfare, Pension and Training Funds and ten percent for the CAICA, LECET, LMCC and for Union dues. Interest is owed at the rate of 12-percent on all delinquent amounts owed from the date of the delinquency forward. It is my responsibility to prepare the damage and interest calculation for audit reports, With respect to the report prepared by the Bansley, liquidated damages are owed in the amount of $65.80 for CAICA, LECET, LMCC and for Union dues. With respect to the Pension, Welfare and Training Funds liquidated damages are owed in the amount of $2,063.88, The Company also owes an additional $2,024.63 in accumulated penalties, which are late payment fees charged to the Company as a result of its failure to pay previous contributions owed to the Funds in a timely manner.
5. Interest has been determined for unpaid Funds' contributions in the amount of $1,220.20, through February 2015.
6. Audit fees paid by the Funds in connection with this matter are $1,531.82.
7. As required by Article IX, Paragraph 1 of the collective bargaining agreement, all employers are required to procure, carry and maintain a surety bond in an amount that is satisfactory to the Union. This surety bond must be in excess of $5,000.00 to guarantee the payment of wages, Pension and Welfare Trust Contributions during the term of the Agreement, The Company has failed to show proof of ever obtaining or maintaining a surety bond as required by the contract.
FURTHER AFFIANT SAYETH NOT.
Subscribed and sworn to before me this
Martin Flanagan being first duly sown on oath, deposses and stats as follows:
1. I am the Assistant Business Manager and Grievance Director for the Construction & General Laborers' District Council of Chicago & Vicinity (hereinafter the "Union"), one of the Plaintiffs in the above referenced action. I am employed by the Union, and my responsibilities include oversight of contract enforcement and the collection of unpaid wages by the signatory employer, Defendant Global Post Construction Cleaning Corp. ("Global"). This affidavit is submitted in support of the Plaintiffs' Motion for Damages against Defendant.
2. Defendant has been a signatory employer since May 3, 2010, as reflected by the Union's records and as shown in the Collective Bargaining Agreement ("CBA") that was attached as Exhibit A to Plaintiffs' First Amended Complaint, and is a true and correct copy of the CBA between Defendant and the Union.
3. The CBA between Defendant and the Union adopts and incorporates the Master Agreement between the Union and various employer associations. Specifically, Defendant and its successors are bound by the Chicago-Area Independent Contractors Association ("CAICA") Agreement with the Union. This is reflected by the Union's records and the CBA.
4. The Union selected Bansley and Kiener, L.L.P ("Bansley") to review Defendant's books and records. Bansley completed the Union's wage compliance review, covering the period from July 1, 2012 through June 30, 2014. Bansley's wage audit report, dated November 18, 2014, shows unpaid wages in the total amount of $6,259.50 owed to employees who performed covered work for Defendant. A true and accurate copy of Bansley's wage audit report and invoice are attached to this affidavit.
5. On December 3, 2014, the Union agreed with the Funds to split costs and waive any conflicts and jointly pursue the present action against Defendant, claiming Defendant liable to both the Funds and to the Union on behalf of its members for contributions, wages, dues, liquidated damages, and all reasonable attorneys' fees and costs incurred in this action.
6. On December 1, 2014, I supervised the filing of a grievance against Defendant. An excerpt of the CAICA Agreement that governs the grievance procedure was attached as Exhibit B to the Plaintiffs' First Amended Complaint.
7. On January 7, 2015, I sent a letter by certified mail to Defendant's registered agent and president, Christopher Hopkins, informing him that the Union's grievance was set for hearing on January 21, 2015. Accompanying the letter at were copies of the grievance report form and Bansley's wage audit. Copies of the letter, and the accompanying materials, were attached to Plaintiffs' First Amended Complaint as Exhibit C.
8. On January 21, 2015, the grievance was heard by the Joint Grievance Committee ("JGC"). The Defendant failed to appear or participate in the hearing. The JGC is a committee made up of equal Management representatives and Labor representatives. By majority vote, the JGC upheld the grievance in its entirety. The award issued by the JGC (hereinafter "JGC Award") is final and binding. The JGC Award is entirely based on the amounts owed pursuant to Bansley's audit report. A copy of the JGC Award dated February 2, 2015 was attached to Plaintiffs' First Amended Complaint as Exhibit D.
9. Pursuant to the JGC Award, Defendant was ordered to pay a $6,259.50 in unpaid wages, with each employee being paid the amount owed to him or her as detailed in the wage audit report. Additionally, the CBA and the Master Agreement to which the Defendant is bound, requires that Defendant also pay a penalty of 50-percent liquidated damages in the amount of $3,129.75 and the $607.50 in costs for the wage audit.
10. On February 2, 2015 I sent notice of the JGC Award to Christopher Hopkins, enclosed with the letter were additional copies of the grievance report, Bansley's audit report and invoice. Defendant then failed to comply with the JGC Award within the allotted seven-day time frame as stated in the JGC Award. As a result, Defendant is also liable for an additional 10-percent liquidated damages, accessed on the amount of the total unpaid wages, in the amount of $625.95.
11. The CBA, the Master Agreement, the JGC Award, and the Funds' Agreements and Declarations of Trust, require payment of Plaintiffs' court costs and reasonable attorneys fees in the enforcement of a JGC Award.
Subscribed and sworn to before me this
Ryan Matthew Thoma, being first duly sworn on oath, deposes and states as follows:
1. I am an associate attorney at the law firm of Allison, Slutsky & Kennedy, P.C., counsel for the Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity ("Funds"), James S. Jorgensen, the Administrator of the Funds, and the Construction & General Laborers' District Council of Chicago & Vicinity ("Union") (collectively "Plaintiffs") in the action captioned above against Global Post Construction Cleaning Corp. ("Defendant"). This affidavit is submitted to document attorneys' fees and costs incurred by the Funds and the Union through March 20, 2015.
2. This firm bills the Funds on an hourly basis for services rendered at a rate of $225.00 per hour for shareholders, $195.00 per hour for associates, and $110.00 per hour for clerks/paralegals. In this case, records for legal work bills to the Funds in this matter were kept contemporaneously by all individuals and are attached hereto as Exhibit A.
3. This firm bills the Union on an hourly basis for services rendered at a rate of $185.00 per hour for shareholders, $155.00 per hour for associates, and $75.00 per hour for clerks/paralegals. In this case, records for legal work bills to the Union in this matter were kept contemporaneously by all individuals and are attached hereto as Exhibit B.
4. Exhibit A and B hereto sets forth all the time expended from December 8, 2014 through March 20, 2015, by the firm's attorneys and paralegals in this matter. The Funds and the Union have incurred a total of $10,053.50 in legal fees in this matter. Attorney time was expended in this case due to multiple court appearances, telephone calls with the representatives of the Funds and the Union, correspondence with the auditor retained by the Plaintiffs in this matter, contact with the Defendant's primary shareholder, drafting Plaintiffs' Complaint and First Amended Complaint, as well as drafting Plaintiffs' Motion for Default and Damages and the accompanying materials.
4. In addition, the Plaintiffs have incurred the following costs in the prosecution of this matter totaling $652.00, consisting of $400.00 in filing fees, $78.00 in research fees locating the Defendant's owner Christopher Hopkins, and $174.00 for service of summons. Attached to this affidavit as Exhibit C is a copy of the invoice relating to service of summons and attached as Exhibit D is the invoice related to research fees,
FURTHER AFFIANT SAYETH NOT.
Subscribed and sworn to before me this
This cause coming before the Court on the Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Funds"), James S. Jorgensen ("Jorgensen"), Administrator of the Funds, and the Construction & General Laborers' District Council of Chicago and Vicinity ("Union") (collectively "Plaintiffs") Motion for Damages, due notice having been given to the Defendant, and the Court having found that the Defendant has been properly served with summons and complaint.
1. Judgment is entered on behalf of the Plaintiffs against Defendant Global Post Construction Cleaning Corp. in a total amount of $39,211.91, which consists of:
2. This Court orders Global Post Construction Cleaning Corp. to obtain and maintain a surety bond in the amount of $5,000.00, to guarantee the payment of wages, pension and welfare contributions as required by the collective bargaining agreement. It is further ordered that within 60 days of the date of this judgment order, Global Post Construction Cleaning Corp.,
