Project Posner

Lead opinion by POSNER

   MEMORANDUM

   At the close of trial on August 8, 1983, I delivered tentative findings of fact and conclusions of law, and invited comments and asked the parties to submit damage estimates for defendant C.A. Sementa Contractors, Inc.'s liability for breach of the second contract. The only substantive comment received is a request to clarify whether I meant to hold that a letter to a pension fund is an effective way of terminating a collective bargaining agreement. I did and do not so hold. Since the parties agreed to limit damages to the period ending June 2, 1982, the date of Sementa's letter, it is immaterial whether the letter lawfully terminated the collective bargaining agreement. No further clarification of my tentative findings is necessary, so I adopt them, as clarified, together with what follows, as my findings of fact and conclusions of law under Fed. R. Civ. P. 52(a).

   I found in my oral opinion that the defendant had broken its contract with the plaintiff funds for the period March 27, 1981, through June 2, 1982. The audit sheets submitted by the parties allow a damage figure to be calculated but only for the period from April 1, 1981, through May 31, 2 1982, but the variance with the period of breach is trivial. The defendant's contention that only half the hours worked were laborers' hours (the rest being plumbers' hours) is untenable.An employer must fund the plans to which his employees belong, and may not scrutinize each hour to see whether it meets the strict definition of "labor" in the collective bargaining agreement. Moreover, there is no evidence Sementa contributed to the plumbers union's pension funds for the hours sought to be excluded. Sementa sought peace with the laborers union by signing a contract with it, and he is not free to pick and choose among the terms.

   Similarly unpersuasive is the contention that none of Nicole Tribuzio's hours required contribution to the plaintiff funds. Nicole joined the laborers union, and the fact that his work may have been "principally that of a plumber," that the plumbers union likes there to be at least one plumber on each job, or that Nicole has since joined the plumbers union does not eliminate the defendant's contractual liability for the period in question. Once again, the defendant offered no evidence that it provided for this employee's welfare by contributing to plumbers 3 pension funds. Carmen Sementa told Nicole to sign up with the union and he well knew that the union he was instructing him to join was indeed the laborers union.

   In light of my findings and the audit data I find the defendant Sementa liable for $11,363.40 in damages, plus costs and reasonable attorney's fees in amounts yet to be determined. Included in my damage figure are liquidated damages in the amount of 20% of the unpaid contributions, pursuant to 29 U.S.C. § 1132(g)(2)(C)(ii). I have awarded the maximum liquidated damages allowed by law because of the heavy burdens placed on the laborers pension funds as a result of Sementa's actions. Consistent with the Laborers' Pension Fund Amended Agreement and Declaration of Trust (Exh. 4), Sementa admits that the administrative costs of pursuing such claims is at least 10% of the unpaid contributions, and in light of the small size of the claim recoverable here the 20% figure seems more appropriate. Even if the extra 10% is viewed as punitive, it is justified under 29 U.S.C. § 1132(g)(2)(E) by the deliberate and repeated character of Sementa's unlawful activity.

   I have calculated the damages as follows: Unpaid contributions (29 U.S.C. § 1132(g)(2)(A)) April-May 1981 981 hrs. X $1.87/hr. $1,834.47 June 1981 - May 1982 3510 hrs. X $1.92/hr. 6.739.20 $ 8,573.67 20% liquidated damages 1,714.73 (29 U.S.C. § 1132(g)(2)(C)(ii) Audit fees 1,075.00 (29 U.S.C. § 1132(g)(2)(E)) Total $11,363.40

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   Plaintiffs are also entitled to costs and reasonable attorney's fees, 29 U.S.C. § 1132(g)(2)(D), for which they must move. It also appears, both from the funds' trust agreements and from 29 U.S.C. § 1132(g)(2)(B), that the plaintiffs may be entitled to prejudgment interest. Since no such interest has been requested I will not include it in the damage award, but the plaintiffs can request it by filing a motion under Fed. R. Civ. P. 59(e).

   Final Judgment for the plaintiff of $11,363.40 will be entered forthwith.

   SO ORDERED.

   Richard A. Posner, U.S. Circuit Judge *

   * Sitting in the N.D. of Illinois by designation.