TRUSTEES OF THE PLUMBERS LOCAL UNION NO. 1 WELFARE FUND, v. BASS PLUMBING & HEATING CORP. et al Complaint

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UNITED STATES DISTRICT COURT
EASTERN
TRUSTEES OF THE PLUMBERS LOCAL UNION NO.
I WELFARE FUND, ADDITIONAL SECURITY
BENEFIT FUND, VACATION & HOLIDAY FUND,
TRADE EDUCATION FUND, AND 401(K) SAVINGS
PLAN,
Plaintiffs, COMPLAINT
-against-
BASS PLUMBING & HEATING CORP.,. ROBERT
FIDUCCIA and WESTCHESTER FIRE INSURANCE
COMPANY
MAUSKOPF, 1.

Defendants.
AZfi:ACK
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MJ
Plaintiffs, by and through their attorneys, Virginia & Arnbinder, LLP, as and for
their Complaint, respectfully allege as follows:
NATURE OF THE ACTION
1. This is a civil action pursuant to, inter alia, sections 502(a)(3) and SIS of
the Employee Retirement Income Security Act ("ERISA"), as amended, 29 U.S.C. §§
1132(a)(3) and l145, and section 301 of the Labor Management Relations Act of 1947
("LMRA"), 29 U.S.c. § 185, by the trustees of a group of multiemployer employee
benefit plans to enforce an employer's contractual and statutory obligations to make
specified monetary contributions to the plans, and for related relief.
JURISDICTION AND VENUE
2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331
and 1367 and 29 U.S.C. §§ 185 and I 132(e)(1).
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3. Venue is proper in this judicial district pursuant to 29 U.S.C. §§ 185 and
lI32(e)(2).
THE PARTIES
4. Plaintiffs Trustees of the Plumbers Local Union No. I Welfare Fund,
Additional Security Benefit Fund, Vacation & Holiday Fund, Trade Education Fund, and
401(k) Savings Plan (collectively, the "Funds") are employer and employee trustees cf
multiemployer labor-management trust funds organized and operated pursuant to various
collective bargaining agreements in accordance with section 302(c) of the LMRA, 29
U.S.C. § I 86(c). The Funds are employee benefit plans within the meaning of section
3(3) of ERISA, 29 U.S.C. § 1002(3). The Funds are administered at 158-29 Georg,!
Meany Boulevard, Howard Beach, New York 11414.
5. Defendant Bass Plumbing & Heating Corp. ("BASS") is a corporation
organized under the laws of the State of New York, with its principal place of business at
545 Port Richmond Avenue, Staten Island, New York 10302.
6. Defendant Robert Fiduccia ("Fiduccia") is an individual and resides at 456
Seventh Avenue, Suite 89, New York, New York 10001. At all relevant times, Fiduccia
has been the president and majority shareholder of BASS.
7. Defendant Westchester Fire Insurance Co. ("Westchester Fire") is It
corporation organized under the laws of the state of Nebraska with a principal place of
business of 463 Walnut Street, Philadelphia, Pennsylvania 19106.
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GENERAL ALLEGATIONS
8. BASS is, and at all relevant times was, an employer within the meaning (If
section 3(5) of ERISA, 29 U.S.C. § 1002(5), and an employer in an industry affecting
commerce within the meaning of section 301 of the LMRA, 29 U.S.C. § 185.
9. Local Union No. 1 of the United Association of Journeymen anj
Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada
(the "Union") is, and at all relevant times was, a labor organization within the meaning of
section 301 of the LMRA, 29 U.S.C. § 185. The Union represents, and at all relevant
times represented, employees in an industry affecting commerce as defined in section 50:1
of the LMRA, 29 U.S.C. § 142.
10. At all relevant times, BASS was a party to, and/or manifested its intention
to be bound by, one or more collective bargaining agreements with the Union (th,)
"CBAs").
11. At all relevant times, the CBAs required BASS to make specified hourly
contributions to the Funds in connection with all plumbing work and other specified work
performed on behalf of BASS within the five boroughs of the City of New Y o r l ~
("Covered Work"). In connection with all such work, the CBAs also required BASS to
remit other specified amounts, including Union dues withheld from its employees' pay, to
the Plumbers Local Union No.1 Welfare Fund (the "Welfare Fund"), as collection agent
for the Union and other specified entities.
12. BASS failed to remit the estimated amount of $377,822.35 in required
contributions to the Funds (including amounts for which the Welfare Fund acts aB
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collection agent) for November 2011 through May 2012. Additionally, Bass owes
interest of$74,838.00, liquidated damages of$I,260,450.00 and legal fees of$5,328.00.
FIRST CLAIM FOR RELIEF
13. Plaintiffs repeat the allegations set forth in paragraphs I through 14 above
and incorporate them herein by reference.
14. Section 515 of ERISA provides: "Every employer who is obligated to
make contributions to a multi employer plan under the terms of the plan or under the
terms of a collectively bargained agreement shall, to the extent not inconsistent with law,
make such contributions in accordance with the terms and conditions of such plan or such
agreement." 29 U.S.C. § 1145.
15. Under the documents and instruments governing the Funds, including their
trust agreements and the collection policies promulgated in accordance therewith,
employers whose contributions are delinquent are liable for the amount of the delinquent
contributions, interest at the rate of 10% per annum, liquidated damages of 20% of thl'
principal amount due, attorneys' fees, audit fees, and other collection costs.
16. Section 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), provides that, upon!L
finding that an employer violated section 515 of ERISA, 29 U.S.C. § 1145, the plan i ~ ,
entitled to judgment for the amount of delinquent contributions plus interest and
liquidated damages at rates prescribed by the documents and instruments governing thl'
plan, and the reasonable attorneys' fees and costs incurred by the plan in prosecuting the
action.
17. By its failure to make the required amount of contributions to the Funds in
connection with Covered Work performed during the October 2011 through March 2012,.
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BASS contravened the CBAs, the documents and instruments governing the Funds, and
section 515 of ERISA, 29 U.S.C. § 1145.
18. Accordingly, BASS is liable to the Funds for delinquent
contributions in the estimated amount of $116,464, interest at the rate of ten percent
(10%) per annum; liquidated damages of twenty percent (20%) of the contributions owej
and reasonable attorneys' fees and costs in an amount to be determined by the Court.
SECOND CLAIM FOR RELIEF
19. Plaintiffs repeat the allegations set forth in paragraphs 1 through 18 abow
and incorporate them herein by reference.
20. Under the documents and instruments governing the Funds, including their
trust agreements and the collection policies promulgated in accordance therewith,
employers whose contributions are delinquent are liable for the amount of the delinquent
contributions, interest at the rate of 10% per annum, liquidated damages of 20% of the
principal amount due, attorneys' fees, audit fees, and other collection costs.
21. In connection with previous late payments of contributions, Bass owe:;
interest of $74,838.00, legal fees of$5,328.00 and liquidated damages of $ 1,260,450.00
THIRD CLAIM FOR RELIEF
22. Plaintiffs repeat the allegations set forth in paragraphs 1 through 24 abovt,
and incorporate them herein by reference.
23. The trust agreements of the Funds provide that the Funds' assets includt,
not only money that employers have actually contributed to the Funds, but also
delinquent amounts that employers were required to contribute to the Funds pursuant to
collective bargaining agreements.
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24. Section 3(21 )(A)(i) of ERISA, 29 U.S.C. § 1002(21 )(A)(i), provides that a
person is a fiduciary of an employee benefit plan to the extent he or she exercises any
discretionary authority or discretionary control respecting management of such plan 0 r
exercises any authority or control respecting management or disposition of its assets.
25. At all relevant times, Fiduccia was president and majority shareholder of
BASS, and exercised operational control of BASS, including discretionary authority and
discretionary control of bank accounts and other assets in the possession of BASS.
26. At aU relevant times, Fiduccia was directly responsible for the failure of
BASS to make contributions to the Funds.
27. Fiduccia was responsible for deciding whether to use assets in th,:
possession of BASS to pay contributions to the Funds. Fiduccia decided not to use such
assets to pay contributions to the Funds.
28. Fiduccia exercised discretionary control and/or discretionary authority
over the disposition of the Funds' assets by causing BASS to fail to make contributions to
the Funds in accordance with the CBAs. At times when BASS owed contributions to the
Funds, Fiduccia caused BASS to use assets in its possession for purposes other than
making contributions to the Funds.
29. Fiduccia was a fiduciary of the Funds within the meaning of section
3(21)(A)(i) of ERISA, 29 U.S.C. § 1002(21)(A)(i).
30. Fiduccia was a party in interest with respect to the Funds, within the
meaning of section 3(14)(A), (E), and/or (H) of ERISA, 29 U.S.C. § 1002(14)(A), (El.
and/or (H).
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31. BASS was a party in interest with respect to the Funds, within the
meaning of section 3(14)(C) of ERISA, 29 U.S.C. § I002(14)(C).
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32. By the foregoing acts and omissions, Fiduccia failed to discharge hi,
duties with respect to the Funds solely in the interest of the participants and beneficiarie"
of the Funds and for the exclusive purposes of providing benefits to the Funds'
participants and their beneficiaries and defraying reasonable expenses of administering
the Funds, in violation of section 404(a)(1 )(A) of ERISA, 29 U.S.C. § II 04(a)(1 )(A).
33. By the foregoing acts and omissions, Fiduccia failed to discharge
duties with respect to the Funds with the care, skill, prudence, and diligence under tht,
circumstances then prevailing that a prudent person acting in a like capacity would use in
the conduct of an enterprise of a like character and with like aims, in violation of section
404(a)(I)(B) of ERISA, 29 U.S.C. § 1104(a)(I)(B).
34. By the foregoing acts and omissions, Fiduccia caused assets of the
to be used by or for the benefit of a party in interest, in violation of section 406(a)(1 )(D}
of ERISA, 29 U.S.C. § II06(a)(1)(D).
35. By the foregoing acts and omissions, Fiduccia caused the Funds to suffer
substantial monetary losses.
36. Under section 409(a) of ERISA, 29 U.S.C. § l109(a), Fiduccia is
personally liable to the Funds for all such losses, plus all profits Fiduccia has made andiOI
all earnings the Funds have lost as a result of such acts and omissions.
FOURTH CLAIM FOR RELIEF
37. Plaintiffs repeat the allegations set forth in paragraphs I through 37 above
and incorporate them herein by reference.
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38. On or about August 12, 2010, Defendant Westchester Fire issued Bond
No. K07353959 (the "Benefits Bond") to Bass for the penal sum of $600,000.00. By
issuing the Benefits Bond, Westchester Fire undertook an obligation to pay any and all
contributions, plus interest and lost earnings thereon, to the Plaintiffs required by the
CBA, up to the penal sum of $600,000.00, unless BASS made those contributions.
39. As a result of New' failure to make contributions to the Plaintiffs as
required by the CBA, Defendant Platte is liable to the Funds for contributions, intere;t
and lost earnings of up to $600,000.00.
WHEREFORE, Plaintiffs respectfully request that this Court:
(1) Render judgment in favor of Plaintiffs against BASS and Fiduccia, jointl:r
and severally, for contributions of $377,822.35 plus interest and liquidated damages;
(2) Render judgment in favor of Plaintiffs against BASS and Fiduccia, jointl:r
and severally, for interest, liquidated damages and legal fees of $1,340,616 pursuant to
previous late payment of contributions;
(2) Render judgment in favor of Plaintiffs against Fiduccia for an additional
amount equal to the profits he has made and/or the earnings the Funds have lost as a
result of Fiduccia's acts and omissions;
(3)
$600,000;
(3)
Render judgment in favor of Plaintiffs against Westchester Fire fo:
Award Plaintiffs the reasonable attorneys' fees, costs, and expense:;
incurred by them in prosecuting this action; and
(4) Award Plaintiffs such further legal, equitable, or other relief as is just and
proper.
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Dated: New York, New York
May 8, 2012
By:
Respectfully submitted,
VIRGINIA & AMBINDER, LLP
es R. Virginia
. chard B. Epstein
111 Broadway, Suite 1403
New York, New York 10006
(212) 943-9080
Attorneys for Plaintiffs
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