Rod Marshall, Trustee; Kim Quick, Trustee; Ron Kaminski, Trustee; Ron Fucinaro, Trustee; Frank Neuvirth, Trustee; Timothy McCormick, Trustee; International Union of Operating Engineers, Local 571; Contractors, Laborers, Teamsters and Engineers Health and Welfare Plan; Contractors, Laborers, Teamsters and Engineers Pension Plan Plaintiffs - Appellees
Anderson Excavating & Wrecking Company, also known as Anderson Excavating Co. Defendant-Appellant
Submitted: May 16, 2018
from United States District Court for the District of
Nebraska - Omaha
SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
Union of Operating Engineers, Local 571 ("Union")
and trustees of the Contractors, Laborers, Teamsters, and
Engineers ("CLT&E") Health and Welfare Plan
("Welfare Plan") and Pension Plan ("Pension
Plan") (collectively, "plaintiffs") sued
Anderson Excavating and Wrecking Co. ("Anderson
Excavating") under 29 U.S.C. § 185(a), 29 U.S.C.
§ 1132, and 29 U.S.C. § 1145. They requested that
the district court order Anderson Excavating to pay the
contributions it allegedly owes to the Welfare Plan and
Pension Plan, along with interest, liquidated damages, and
attorneys' fees and costs. The district court found
Anderson Excavating liable to the plaintiffs for delinquent
contributions under § 1145 and entered judgment against
it and in favor of the plaintiffs in the amount of $11,
956.96 in unpaid contributions; $8, 817.96 in prejudgment
interest; $8, 817.96 in liquidated damages; $38, 331 in
attorneys' fees; and $516.50 in nontaxable costs.
appeal, Anderson Excavating argues that the district court
erred in determining (1) damages for unpaid contributions,
(2) prejudgment interest, (3) liquidated damages, and (4)
attorneys' fees. We conclude that the district court
legally erred in applying the alter ego doctrine to justify
an award of unpaid contributions for an alleged
employee's work. Accordingly, we reverse the judgment of
the district court and remand for further proceedings
consistent with this opinion.
bench trial, the district court made the following findings
of fact. See Marshall v. Anderson Excavating &
Wrecking Co., No. 8:14-CV-96, slip op. at 1-11 (D. Neb.
Aug. 11, 2016), ECF No. 77. Various construction labor unions
and contractors established the Welfare Plan and Pension Plan
to administer health benefits and a pension program for
employees the unions represent. On May 30, 1996, Anderson
Excavating, a construction business owned by Virgil Anderson,
entered into an agreement with the Union, which
"recognized the Union as the 'exclusive collective
bargaining agent for all employees within the contractually
described bargaining unit on all present and future job sites
within the jurisdiction of the Union.'" Id.
at 2 (quoting Ex. 30).
Excavating entered into a collective bargaining agreement
(CBA) with the Union. It provides, in relevant part, that the
parties must comply with agreements establishing the Welfare
Plan and Pension Plan. The CBA states that Anderson
Excavating must contribute $4.00 to the Welfare Plan and
$2.45 to the Pension Plan for each hour employees
"worked on projects in Douglas, Cass, Washington, Sarpy,
that portion of Saunders County lying east of Highway 109
extended north and south to the County Line for each employee
covered by this Agreement." Id. (quoting Ex. 1
at 16). Separate CBA provisions detailed the types of
employees the CBA covered.
2013, the CLT&E commissioned an audit of Anderson
Excavating's payroll. The CLT&E retained JoAnne
Walde, a CPA for DeBoer & Associates, to audit Anderson
Excavating's payroll for the period between January 1,
2010, and April 30, 2013. Walde testified that she used
records Anderson Excavating provided to determine what type
of work each of Anderson Excavating's employees
performed. The records included a payroll summary report,
W-2s, W-3s, 1099s, 1096s, and state unemployment records. She
also explained that Dawn Helms, the CLT&E's contract
compliance auditor, provided her with the Fringe Benefit
Reports that Anderson Excavating had submitted to the
CLT&E for the relevant time period.
Fringe Benefit Report lists the contributions Anderson
Excavating made to the Welfare Plan and Pension Plan funds
for a particular month. The Fringe Benefit Reports indicate
that Anderson Excavating contributed to the Welfare Plan and
Pension Plan each month from 2006 through 2015. Helms also
gave Walde certain certified payroll records that Anderson
Excavating had submitted to its general contractor on a
project known as the Kiewit Phelps job or the StratCom job.
Walde testified that she conversed with Ilene Kahler,
Anderson Excavating's office manager, concerning what
work certain employees performed. Walde gave a list of
employees to Kahler, and Kahler then made handwritten notes
about the type of work each employee performed.
records Walde reviewed and relied on actually came from two
different but related companies owned by Virgil Anderson.
Some of the records came from Anderson Excavating. The rest
of the records came from a separately incorporated entity
called Anderson Excavating Company Plus ("Anderson
Plus"). Walde testified that no one told her there were
two separate companies. Consequently, her audit report did
not distinguish between the two companies.
reviewing company records, Walde testified that she next
divided the list of employees into two groups: operating
engineers and those who were not operating engineers.
Walde's understanding was that the CBA covered only work
that the operating engineers performed. According to Walde,
her next step was to identify any work that operating
engineers performed that Anderson Excavating had not reported
or remitted on. Walde created a document representing the
variances between the ...