Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wisconsin Laborers Pension Fund v. Ji Construction, LLC

United States District Court, W.D. Wisconsin

March 12, 2017

WISCONSIN LABORERS PENSION FUND, WISCONSIN LABORERS HEALTH FUND, WISCONSIN LABORERS APPRENTICESHIP & TRAINING FUND, WISCONSIN LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, WISCONSIN LABORERS DISTRICT COUNCIL, and JOHN J. SCHMITT in his capacity as Trustee, Plaintiffs,
v.
JI CONSTRUCTION, LLC, and JEREMY IVERSON, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge.

         In this civil suit, plaintiffs assert claims against defendant JI Construction, LLC, under section 515 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132, and section 301(a) of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185(a), for allegedly failing to make required contributions to employee benefit funds. Now before the court is plaintiffs' partial motion for summary judgment, which seeks a declaration as a matter of law that JI Construction failed to make contributions required under the terms of its collective bargaining agreement, as well as that defendants' counterclaim for abuse of process is meritless. For the reasons explained below, the court will grant plaintiffs' motion in part and deny it in part, finding that JI Construction failed to fulfill its obligation to make required contributions for work performed by certain employees and dismissing defendants' abuse of process counterclaim.

         UNDISPUTED FACTS[1]

         A. The Parties

         Plaintiffs consist of employee benefit plans, as well as their trustees and fiduciaries. Defendant JI Construction, LLC, is incorporated in the state of Wisconsin and has its principal place of business in Livingston, Wisconsin. Jeremy Iverson is JI Construction's principal and owner, and he lives in Wisconsin. Regardless, this court has jurisdiction over these federal labor law claims.

         B. Letter of Assent

         On March 1, 2007, JI Construction, by its owner, Jeremy Iverson, signed a one-page “Letter of Assent.” The parties dispute whether his signature bound JI Construction to the underlying 2006 multi-employer, collective bargaining agreement (“CBA”) with the Wisconsin Laborers' District Council (“District Council”), the union representative, and the Associated General Contractors of Wisconsin Inc. (“AGC”), which was empowered to negotiate on behalf of employers for the period from 2006 through 2011, absent termination by an employer. The first paragraph of the Letter of Assent unambiguously reads: “This Agreement is entered into between [JI Construction] its successors and assigns, hereinafter referred to as the “Contractor” and the Wisconsin Laborers' District Council, its successors and assigns, hereinafter referred to as the “Union.” (Decl. of Jeremy Iverson Ex. 1 [hereinafter “Letter of Assent”] (dkt. #49-1).) In support of their argument that JI Construction bound itself to the CBA by signing the letter of assent, plaintiffs point to the language of the first two numbered paragraphs of the Letter of Assent.

         The Contractor and the Union agree as follows:

1. The Contractor recognized the Union as the sole and exclusive bargaining representative for and on behalf of the employees of the Contractor within the territorial and occupational jurisdiction of the Union, as specified in the Agreement between the Union and the Municipal/Utilities Division, WI Chapter, Associated General Contractors of America Inc.
2. The Union and the Contractor hereby adopt the Labor Agreement between the Union and the “Municipal/Utilities Division, WI Chapter, Associated General Contractors of America Inc.” dated June 1, 2006 and both the Contractor and the Union agree to be bound by all the terms and conditions of said Agreement.

(Id.)

         In contrast, defendants assert that JI Construction did not intend to become a party to any CBA by signing the Letter of Assent, but rather intended only to reach an agreement with Laborers Local 464 to be able to hire its workers. (Defs.' Resp. PFOF (dkt. #48) ¶ 5 (citing Decl. of Jeremy Iverson (dkt. #49) ¶ 11).) Iverson reports reaching that conclusion “[b]ased upon the Letter of Assent itself and how it was presented.” (Decl. of Jeremy Iverson (dkt. #49) ¶ 13.) Specifically, Iverson declares that the Local 464 representatives who presented him with the Letter of Assent did not inform him that it “was in anyway related to a collective bargaining agreement” and that “it appeared that the District Council and the Local 464 were all the same.” (Id. at ¶¶ 8, 14.)

         C. Attempted Terminations

         Even if JI Construction became a party to the 2006 CBA by signing the letter of assent, JI Construction claims to have effectively terminated its participation in that CBA and subsequent ones. Plaintiffs, in contrast, again point to the language in the Letter of Assent, which includes an “evergreen clause” regarding adoption of successor CBAs and termination:

3. This Agreement and the adoption of the Agreement between the Union and the Municipal/Utilities Division, WI Chapter, Associated General Contractors of America, Inc. shall remain in effect to and including the expiration of the Agreement between the Union and the Municipal/Utilities Division, WI Chapter, Associated General Contractors of America, Inc. This Agreement shall continue in effect from year to year thereafter and specifically adopt any successor agreement entered into between the union and the Municipal/Utilities Division, WI Chapter, Associated General Contractors of America, Inc. subsequent to the expiration date of the Agreement adopted herein, unless notice of termination or amendment is given in the matter provided herein.
5. Either party desiring to amend or terminate this Agreement must notify the other in writing at least sixty days prior to the expiration of the Agreement between the Union and the Municipal/Utilities Division, WI Chapter, Associated General Contractors of America, Inc.

         (Letter of Assent (dkt. #49-1) (emphasis added).) The 2006, 2011 and 2014 CBAs also expressly required termination notifications to be in writing. (Pls. Reply PFOF (dkt. #52) ¶ 7-10.)

         For purposes of summary judgment, the court will assume that Iverson orally notified representatives of Laborers Local 464 in 2008 that JI Construction wished to “opt out” of the CBA. (Defs.' Resp. PFOF (dkt. #48) ¶ 13.) There is no dispute however, that JI Construction first provided written notice to the District Council on August 29, 2015, that it intended to terminate its participation in the CBA.[2]

         Plaintiffs acknowledge that this written notice was effective to terminate JI Construction as a party to the CBAs going forward. They assert, however, that the terms of the 2014 CBA, which succeeded the 2011 CBA, required JI Construction to comply with its terms, including its contribution requirements, through May 31, 2017, as the CBA provides that it “shall continue in force until midnight” of that date. (Pls.' Reply PFOF (dkt. #52) ¶ 12.)

         D. Covered Work

         In this lawsuit, plaintiffs seek unpaid contributions for work performed under the terms of the 2006 and 2014 CBAs.[3] The parties agree that those CBAs only require contributions for “covered work” performed by laborers on public works construction projects, including “flagging.” The parties disagree, however, whether several JI Construction employees performed covered work, as well as whether the CBAs require JI Construction to make contributions for work performed by Mitchell Trecek, an independent contractor.

         JI Construction has prepared an “Employee Payroll Classifications” document, which indicates that four individuals -- Johnathan Crapp, Stephanie Rickard, Jonathan Stivarius and Brian Welsh -- worked as flaggers in August of 2014. (Dep. of Jeremy Iverson Ex. 6 (dkt. #45-2).) That same document also reflects flagging work done by Crapp and Rickard in September of 2014. (Id.) Iverson testified at his deposition that JI Construction misclassified Crapp and Welsh as having done flagging work on that document when they instead drove dump trucks, but Iverson did not make the same assertions as to Rickard and Stivarius.[4] (Pls.' Reply PFOF (dkt. #52) ¶¶ 31, 32.) Moreover, independent contractor Trecek testified at his deposition that he saw Rickard and Stivarius flagging for JI Construction in 2014.[5] (Id. at ¶ 34.)

         Nevertheless, defendants assert that whether Rickard and Stivarius performed covered work for JI Construction's Highway 133 project remains a disputed fact because each of them, along with Crapp and Welsh, signed affidavits asserting that they “did not perform work covered by the [CBAs].”[6] (Defs.' Resp. PFOF (dkt. #48) ¶ 33 (citing Affidavits (dkt. #51)).) Similarly, although Iverson testified at his deposition that Alex Holmes performed laborers' work at a JI Construction public works construction project in Verona, Wisconsin, Holmes also submitted a signed affidavit making the same assertion.[7] (Pls.' Reply PFOF (dkt. #52) ¶ 37.) Ben Bollent, another JI Construction employee, did not sign an affidavit disclaiming covered work, however, and Iverson testified at his deposition that Bollent performed covered work on the Verona project, including laying pipe and digging trenches with a shovel.[8]

         OPINION

         Plaintiffs move for summary judgment as to defendant JI Construction's liability on their ERISA and LMRA claims for failing to make contributions for covered work under the relevant CBAs from 2011 to 2017. Plaintiffs also move for summary judgment on defendants' ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.