United States District Court, D. Massachusetts
BARRY C. MCANARNEY, as he is EXECUTIVE DIRECTOR, MASSACHUSETTS LABORERS' HEALTH AND WELFARE FUND, MASSACHUSETTS LABORERS' PENSION FUND, and MASSACHUSETTS LABORERS' ANNUITY FUND; JAMES V. MERLONI, JR., as he is ADMINISTRATOR, NEW ENGLAND LABORERS' TRAINING TRUST FUND; and JOSEPH BONFIGLIO, as he is TRUSTEE, MASSACHUSETTS LABORERS' LEGAL SERVICES FUND, Plaintiffs,
ABSOLUTE ENVIRONMENTAL, INC. and ABSOLUTE ENVIRONMENTAL CONTRACTORS, INC. Defendants.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
five employee benefit plans and their individual director,
administrator and trustee (collectively
“plaintiffs” or “the Funds”) bring
this action against the employer of their beneficiaries to
enforce the alleged obligation of that employer to make
contributions and to pay interest due under a collective
bargaining agreement. Plaintiffs allege that defendants
Absolute Environmental, Inc. (“AEI”) and Absolute
Environmental Contractors, Inc. (“AEC”)
(collectively “defendants”) have violated the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1145 and 1132
and the Labor Management Relations Act (“LMRA”),
29 U.S.C. § 185. Pending before this Court is
defendants' motion to dismiss. For the reasons that
follow, the motion to dismiss will be denied.
are five employee benefit plans and three individual
directors, administrators and trustees. Plaintiff Barry
McAnarney is the Executive Director of three of the plaintiff
funds which are administered in Burlington, Massachusetts:
(1) the Massachusetts Laborers' Health and Welfare Fund,
an employee welfare benefit plan which provides health,
dental and prescription benefits and insurance to its
participants, (2) the Massachusetts Laborers' Pension
Fund, an employee pension benefit plan providing participants
with a defined pension benefit and (3) the Massachusetts
Laborers' Annuity Fund, an employee pension benefit plan
which acts as a defined contribution fund.
James Merloni, Jr. is the Administrator of plaintiff New
England Laborers' Training Trust Fund, an employee
welfare benefit plan administered in Hopkinton, Massachusetts
which trains apprentices and journey workers in the
construction industry. Plaintiff Joseph Bonfiglio is a
Trustee of plaintiff Massachusetts Laborers' Legal
Services Fund, an employee welfare benefit plan administered
in Burlington, Massachusetts.
AEI is a New Hampshire corporation with its principal place
of business in Salem, New Hampshire and defendant AEC is a
Massachusetts corporation with its principal place of
business in Haverhill, Massachusetts. AEI is an asbestos
abatement contractor that was incorporated in 2004 and
operated as a non-union contractor until 2010. In January,
2010, AEI signed the Wrecking and Environmental Remediation
Acceptance of Agreement and Declaration of Trust (“the
Acceptance”) through which it became a party to the
collective bargaining agreement between the Massachusetts
Laborers District Council Union and the Massachusetts
State-Wide Wrecking and Environmental Remediation Specialists
Association, Inc. (“the CBA”).
requires that signatory employers make contributions to the
plaintiff funds for each hour worked by covered employees at
the rates prescribed therein. After an employee has met the
hours requirement set out by the fund, that employee is
entitled to health and welfare benefits. Three months after
AEI became a signatory to the CBA, it caused AEC to be
incorporated in Massachusetts. AEC is not a signatory to the
CBA and undertakes non-union “open shop” work. In
its filings with the Massachusetts Secretary of State, AEC
identified Elaine McCaffrey and Susan Quinn, the wives of AEI
owners Gary McCaffrey and Richard Quinn, as AEC's
directors. Plaintiffs allege that Gary McCaffrey and Richard
Quinn manage both companies and that their wives are not
involved in the operations of either company.
allege that AEC performs the same work that AEI performs,
within the territorial jurisdiction of the CBA. They contend
that AEI and AEC both operate out of the same address in
Salem, New Hampshire where both companies use the same
trucks, estimator, clerical staff and supervisors. Plaintiffs
assert that laborers receive their checks each week from the
Salem office regardless of whether they completed jobs for
AEI or AEC and that many of laborers work interchangeably for
both companies. They allege that one laborer, Jean Jimenez,
reported to the Salem office to collect his checks where he
was asked if he had a “union” or
“non-union” job. According to plaintiffs,
employees at the office would provide a different-colored
paycheck depending on whether the job was union or non-union
and those paychecks reflected different rates of pay and
deductions. Plaintiffs describe other overlapping functions
of the companies, including the sharing of the same website
and email address.
brought this action in July, 2015 and filed an amended
complaint in April, 2016, alleging violations of ERISA and
the LMRA. The parties jointly moved to stay the case and it
was stayed from May, 2016 until June, 2017. In June, 2017,
defendants moved to dismiss the amended complaint and that
motion is the subject of this memorandum.
Defendant's Motion to Dismiss
sTo survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). In considering the merits of a motion to dismiss,
the Court may look only to the facts alleged in the
pleadings, documents attached as exhibits or incorporated by
reference in the complaint and matters of which judicial
notice can be taken. Nollet v. Justices
of Trial Court of Mass., 83 F.Supp.2d 204, 208 (D. Mass.
2000), aff'd, 248 F.3d 1127 (1st Cir. 2000).
Furthermore, the Court must accept all factual allegations in
the complaint as true and draw all reasonable inferences in
the plaintiff's favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).
Although a court must accept as true all of the factual
allegations contained in a complaint, that doctrine is not
applicable to legal conclusions. Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
contend that plaintiffs' alter ego theory fails as a
matter of law because plaintiffs do not allege that AEI and
AEC deceived or defrauded the Funds or that AEC was used to
divert business away from AEI. According to defendants,
because AEI was incorporated first and operated as a
non-union company for several years before it entered into
the CBA and before AEC was incorporated, AEC was not created
for an improper purpose. Defendants aver that plaintiffs'
alternative theory, that AEC and AEI are, in fact, a single
employer with a unified bargaining unit, is unavailing