United States District Court, E.D. Michigan, Southern Division
TRUSTEES OF THE LABORERS PENSION AND BENEFITS TRUST FUNDS, et al ., Plaintiffs,
PG SIMON ON SITE INC., Defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR AMENDED
E. Rosen United States District Judge.
session of said Court, held in the U.S. Courthouse, Detroit,
Michigan on January 9, 2017 PRESENT: Honorable Gerald E.
Rosen United States District Judge
Trustees of the Laborers Pension Trust Fund, Vacation &
Holiday Trust Fund, Metropolitan Detroit Health & Welfare
Fund and Michigan Laborers Training Fund brought this action
seeking to recover from Defendant PG Simon On Site Inc.
(“Simon”) contributions due and owing to the
Funds for work done by those of its employees who were
covered by collective bargaining agreements with the Laborers
Union. Simon never answered or otherwise responded to
Plaintiffs' Complaint and a Clerk's Entry of Default
was issued. Thereafter, Plaintiffs moved for Default
hearing was scheduled on Plaintiffs' Motion, however, the
day before scheduled hearing, the parties entered into a
Consent Judgment, which provided in relevant part:
PG SIMON ON SITE INC. shall, within two weeks of the date of
this Order, submit to plaintiffs (for inspection and audit)
any and all books and records (without limitation whatsoever)
needed to determine the amount of defendant's
indebtedness for the period from July 2010;
Plaintiffs are granted leave to file a motion to amend this
judgment following the above audit, and shall be awarded the
amount owing, if any, for the period from July 2010 to the
date of the audit, as ascertained by the above audit, plus
interest, costs and attorneys' fees.
[See Consent Judgment, Dkt. # 10.]
to the issuance of the Judgment, Defendant submitted its
books and records to Kem Whatley, compliance auditor with the
firm of Stefansky Holloway and Nichols, Inc., payroll
auditors for Plaintiffs, to determine the amount of any
completion of the audit, Mr. Whatley determined that
Defendants' indebtedness to Plaintiffs for the period of
July 2010 through December 2014 was $65, 078.52, consisting
of $59, 171.55 in delinquent contributions; $5, 574.28 in
liquidated damages resulting from the audit; and $339.69 in
liquidated damages resulting from late payments.
[See Affidavit of Kem Whatley, ¶ 3.]
response to the audit, Defendant claimed that work done by a
number of its employees was not covered under the
Laborers' Agreement with the Construction Association of
America (“CAM”), but rather was performed under a
Specialized Services Agreement which called for lesser
contributions for employee pension and benefits.
investigated Defendant's claim and found that it was
inaccurate. Specifically, all of the work done by the
individuals who Defendant disputed was performed at
Simon's demolition project located at the GM Plant on
Mound Road in Warren, which would have been covered by the
Response to Plaintiffs' Motion, Defendant continues to
assert that the work in question was not performed under the
CAM. However, Simon provides no evidence to support that
conclusion, instead it relies on a letter and emails
previously sent by its counsel to Plaintiffs' counsel
which present nothing more than counsel's belief that the
audit results are inaccurate. Unsupported claims of inaccuracy
are insufficient to rebut the validity of the audit. See
Trustees of Painters Union Deposit Fund v. Ybarra
Construction Co, 113 F. App'x 664, 668 (6th Cir.
2004) (“The company did not come forward with
additional records to substantiate its arguments that ... the
hours at issue should have been calculated using [a
different] rate, that certain employees should not have been
included in the computation, or that the total number of
hours was too high. The results of the audit should be
presumed to accurate, since no contradictory evidence was
produced by [the employer].” Id. (internal
footnote omitted)); Trustees of Detroit Carpenters Health
& Welfare Fund v. River City Construction, 99 F.
App'x 612, 614-15 (6th Cir. 2004) (in the absence of
proof from the employer regarding the accurate amount,
“the auditor's report is sufficient proof of the
contributions owed to warrant summary judgment.”)
Defendant here has provided no documentary evidence of any
kind to establish that the auditor's conclusion is
incorrect, it has failed to met its burden of rebutting the
validity of the audit. Therefore, pursuant to the terms of
the Consent Judgment entered in this case on April 3, ...