BOILERMAKER-BLACKSMITH NATIONAL PENSION FUND, et al., Plaintiffs,
CALDWELL TANKS, INC., Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, United States District Judge.
Five employee benefit plans and their fiduciaries (“the Plans” or “the Funds”) bring suit against Caldwell Tanks, Inc. to collect delinquent contributions pursuant to Sections 502 and 515 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132 and 1145 (Count I). The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers (“the Union”) brings suit to enforce two awards pursuant to Section 301 of the Labor-Management Relations Act of 1947 (“LMRA”), 29 U.S.C. §185, rendered by a joint labor-management committee pursuant to dispute resolution procedures established in the parties’ collective bargaining agreement (“CBA”) (Count II). This matter is before the Court on Defendant’s Renewed Motion To Dismiss Plaintiffs’ Amended Complaint Or, In The Alternative, To Stay And Compel Arbitration (Doc. #13) filed July 17, 2012. Defendant argues that the case should be dismissed or stayed while the parties are compelled to participate in mandatory arbitration proceedings contemplated by the applicable CBA. For the following reasons the Court overrules the motion.
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible – and not merely conceivable – on its face. Id. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.
The Court need not accept as true those allegations which state only legal conclusions. See id.; Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). Plaintiffs bear the burden of framing their complaint with enough factual matter to suggest that they are entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. Twombly, 550 U.S. at 556. Plaintiffs make a facially plausible claim when they plead factual content from which the Court can reasonably infer that defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiffs must show more than a sheer possibility that defendant has acted unlawfully – it is not enough to plead facts that are “merely consistent with” defendant”s liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged – but has not “shown” – that the pleaders are entitled to relief. Id. at 1950. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Okla., 519 F.3d 1242, 1248 (10th Cir. 2008) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).
The amended complaint alleges the following facts.
Each of the Funds is an “employee benefit plan” and a “multi-employer plan” within the meaning of 29 U.S.C. § 1002(3), (37). Defendant is a party to CBAs with the Union and is obligated to timely submit reports and fringe benefit contributions to the Funds on behalf of employees who have performed work under those CBAs. Defendant’s contributions are due on a monthly basis in amounts determined by the number of hours of covered work that defendant’s employees performed at rates the CBAs establish for each of the Funds. Defendant failed to properly report all hours of covered work from January 1, 2008 through October 31, 2011, and consequently failed to pay all of the contributions which it owed to the Funds. Defendant’s failure to pay breached the CBAs and defendant is liable to the Funds for the delinquent contributions, costs of collection, attorney’s fees, interest and liquidated damages.
The Union and defendant are parties to a CBA entitled the National Transient Division Articles of Agreement (“the NTD Agreement”) which governs the terms and conditions of employment for certain of defendant’s employees whom the Union represents. The NTD Agreement contains a procedure for resolving grievances that arise under the Agreement, the third step of which is to refer the matter to the Chairmen of the respective Union and contractor negotiating committees (“the Chairmen”). On October 7, 2011, the Union and defendant presented a grievance to the Chairmen. The grievance sought wages and benefits due under the NTD Agreement to defendant’s employees on a project known as the Gila Bend project. On November 15, 2011, the Chairmen issued a decision on the grievance (“the Grievance Decision”). They noted that defendant had conceded that the project was governed by the NTD Agreement and they so found. They further found that defendant had violated the NTD Agreement by not applying it to the Gila Bend project. As a remedy, they ordered defendant to pay the wage and fringe benefits required by the NTD Articles of Agreement. The Chairmen concluded: “We further rule that the parties are directed to meet and determine the appropriate amounts to be paid. We retain jurisdiction over this matter in the event that there is a dispute as to the remedy.” In a letter dated November 23, 2011, counsel for defendant referred to the Grievance Decision and noted that defendant was gathering information to assess what the appropriate amount of wages and fringe benefits would be. On December 14, 2011, defendant proposed to settle the grievance for a lump-sum payment to the Union of $47, 756.11. By letter dated January 24, 2012, the Union rejected the proposal and informed defendant that the Funds were performing audits to determine what defendant owed on the Gila Bend project. The Union audit concluded that defendant owed $318, 966.68, and so informed defendant by letter dated April 5, 2012. Defendant did not directly respond to the dollar amount, but on April 10, 2012, its counsel sent letters: (1) to the Union’s International Representative, noting that the Union had rebuffed defendant’s request to meet to discuss the Grievance Decision and had rejected defendant’s attempt to refer the grievance to arbitration, and notifying the Union that defendant was asking the Federal Mediation and Conciliation Service (“FMCS”) to process its arbitration request; and (2) to the FMCS, asking for a list of arbitrators.
On April 11, 2012, the Union sent a letter to the Chairmen, along with a copy of the April 10 letter from counsel for defendant, requesting that the Chairmen issue a decision on the Union’s submission that defendant owed the Funds $318, 966.68. On April 12, 2012, the Union sent a letter to the FMCS, advising that the Union was not participating in an arbitration and that the FMCS services were not required.
In a letter dated May 11, 2012, the Chairmen sent a letter to defendant and the Union because the matter had been referred to them pursuant to their retained jurisdiction, this time “to render a decision on the appropriate remedy for the Grievance resolved in our November 15, 2011 decision” (“the Remedy Amount Decision”). The Chairmen restated the parties’ respective positions, noting that defendant had submitted no additional information beyond repeating an earlier position that the Chairmen had considered and rejected in its Grievance Decision. The Chairmen concluded as follows:
Accordingly, the Committee finds that the total amount owed by Caldwell Tank, in accordance with the remedy ordered in our decision of November 15, 2011, is $318, 966.68. Caldwell Tank is directed to remit this amount immediately to each of the above funds in the respective amounts stated above.
Previously, on December 20, 2011, six days after it had proposed to settle the matter with a single lump-sum payment to the Union, counsel for defendant sent a letter to the Union which included the following language:
In light of the fact that the [Gila Bend project] grievance has not been satisfactorily resolved based on Mr. Fineman’s December 14, 2011 proposed settlement, Caldwell Tanks, Inc. hereby moves the above-referenced dispute to the arbitration committee for resolution. This action is being taken ...