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Masonry Industry Trust Administration, Inc. v. D/J Masonry LLC

United States District Court, E.D. Washington

April 19, 2017

MASONRY INDUSTRY TRUST ADMINISTRATION, INC., an Oregon corporation, Plaintiff,
v.
D/J MASONRY LLC, a Washington limited liability company, Defendant.

          ORDER DENYING SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION TO COMPEL

          SALVADOR MENDOZA, JR. United States District Judge

         On April 17, 2017, the Court held a hearing on Defendant D/J Masonry LLC's (D/J Masonry) Motion for Protective Order, ECF No. 56, and Motion for Summary Judgment, ECF No. 68, and Plaintiff Masonry Trust Administration, Inc.'s (Masonry Trust) Motion to Compel, ECF No. 60, and Motion for Summary Judgment, ECF No. 63. This Order memorializes and supplements the Court's oral ruling.

         I. INTRODUCTION

         Masonry Trust alleges that D/J Masonry LLC owes contributions to the trust for work performed subject to a collective bargaining agreement (CBA) with the International Union of Bricklayers and Allied Craftsmen Local #3 (the Union). D/J Masonry has refused to provide nearly any information requested by Masonry Trust in discovery. D/J Masonry asserts that the information sought is irrelevant because the CBA terminated in May 2010 and that D/J Masonry is not liable for any contributions because it is not the successor to or alter ego of D/J Caulking, which agreed to be bound by the CBA. Resolving each of the parties' pending motions turns on the validity of these assertions. First, the CBA did not terminate in May 2010 because D/J Caulking did not provide timely notice of intent to terminate. Second, material issues of fact remain on the questions whether D/J Masonry is the successor to or alter ego of D/J Caulking. Accordingly, as the Court ruled orally and for the reasons explained below, both parties' motions for summary judgment are denied. Additionally, D/J Masonry's motion for a protective order is denied and Masonry Trust's motion to compel is granted. The parties shall confer on or before April 24, 2017, to reach agreement on the appropriate scope of discovery in light of the factual and legal issues raised in this case.

         II. BACKGROUND

         A. Factual Background

         On January 21, 2008, D/J Caulking executed a Compliance Agreement in which it agreed to be bound by the CBA executed between the Union and the Washington State Conference of Masonry Contractors, Seattle, Tacoma and Spokane.[1] ECF No. 62 at 2; ECF No. 66 at 2, 7. Among other things, the CBA requires employers to pay wages and make contributions on behalf of its employees performing work covered under the CBA. ECF No. 61 at 2.

         The CBA included the following termination provision:

Section 1. This AGREEMENT shall be in full force and effect commencing June 1, 2005 and shall continue in full force to and including May 31, 2010.
Section 2. This AGREEMENT will automatically be renewed yearly thereafter unless written notice is given by the EMPLOYER or the UNION of the intention to modify the terms of the AREEMENT in whole or in specific parts or to terminate, providing the written notice is received by the other party not later than sixty (60) days, nor more than ninety (90) days prior to the expiration or anniversary date.

ECF No. 66 at 10.

         On September 29, 2009, D/J Caulking sent a letter to the president of the Union, Tim Thompson, that appears to address a dispute concerning money allegedly owed for work done by a particular employee. ECF No. 62 at 7. The letter includes the following closing: “Please let this serve as further notice that we DJ Calking no longer wish to be a part of your organization. We feel your values and business tactics do not mach [sic] our own.” ECF No. 62 at 7. The letter is signed by David Petroske and Jennifer Petroske. ECF No. 62 at 7.

         On October 29, 2009, D/J Caulking sent another letter stating the following:

As owners of D/J Caulking and Coatings we have come to the conclusion that our company is resigning from the Bricklayers and Allied Craft Workers Union. There are no qualified PCC (Pointer, Caulker, and Cleaner) in this area or training being performed on the east side of Washington State. We will not be renewing our contract in 2010.

ECF No. 62 at 10.

         On March 10, 2010, Thompson sent the following letter advising D/J Caulking of the CBA's May 31, 2010 expiration date and intent to negotiate:

The WSCMC “Agreement” between BAC Local #3 WA/ID/MT and your firm will expire May 31, 2010.
Take this as formal notification per Article XIX of the WSCMC Agreement of our (Union) intent to negotiate with your Committee in part or whole of the “Agreement” to which both parties are signed (Union/Employer) to include but not limited to, language, wages, benefits and or subsistence.
Our Committee will be looking forward to meeting your firm to begin negotiating at a date and time that can be mutually agreed upon.
In the past your firm has chosen to allow the Mason Contractors Association of Eastern Washington to negotiate the terms of the Agreement, if you do not wish to do so again, please notify them of your intent to negotiate on your own, otherwise we will ...

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