`
`
`
`LINDA BALDWIN JONES, Bar No. 178922
`KRISTINA M. ZINNEN, Bar No. 245346
`TRACY L. MAINGUY, Bar No. 176928
`WEINBERG, ROGER & ROSENFELD
`A Professional Corporation
`1001 Marina Village Parkway, Suite 200
`Alameda, California 94501
`Telephone (510) 337-1001
`Fax (510) 337-1023
`E-Mail: lbjones@unioncounsel.net
`kzinnen@unioncounsel.net
`tmainguy@unioncounsel.net
`
` Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`THE BOARD OF TRUSTEES, in their
`capacities as Trustees of the NORTHERN
`CALIFORNIA UFCW WHOLESALE
`HEALTH AND WELFARE TRUST FUND,
`
`Plaintiffs,
`
`v.
`TYSON FOODS, INC., a Delaware company,
`
`Defendant.
`
`No.
`
`COMPLAINT FOR BREACH OF
`CONTRACT, DAMAGES, AND AUDIT
`(ERISA 29 U.S.C. §1001, ET SEQ., 29
`U.S.C. §185)
`
`
`
`Plaintiffs complain of Defendant, and for cause of action allege:
`JURISDICTION AND INTRADISTRICT ASSIGNMENT
`I.
`This action arises under and is brought pursuant to section 502 of the Employee
`Retirement Income Security Act, as amended (ERISA) (29 U.S.C. § 1132), and section 301 of the
`Labor Management Relations Act (LMRA) (29 U.S.C. § 185). Venue properly lies in this district
`court since contributions are due and payable in the County of San Francisco. Therefore,
`intradistrict venue is proper.
`
`
`
`
`1
` COMPLAINT FOR BREACH OF CONTRACT, DAMAGES, AND AUDIT
`Case No.
`
`
`
`
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`WEINBERG, ROGER &
`ROSENFELD
`A Professional Corporation
`1001 Marina Village Parkway, Suite 200
`Alameda, California 94501
`(510) 337-1001
`
`
`
`Case 4:20-cv-03380-KAW Document 1 Filed 05/18/20 Page 2 of 5
`
`
`
`PARTIES
`II.
`At all times material herein, Plaintiff The Board of Trustees were Trustees of the Northern
`California UFCW Wholesale Health and Welfare Trust Fund (hereinafter “Trust Fund”). At all
`times material herein, the above-named Trust Fund was, and now is, an employee benefit plan
`created by a written Trust Agreement subject to and pursuant to section 302 of the Labor
`Management Relations Act (29 U.S.C. § 186), and a multi-employer employee benefit plan
`within the meaning of sections 3, 4 and 502 of ERISA (29 U.S.C. §§ 1002, 1003 and 1132). The
`above-named Trust Fund is administered by a Board of Trustees which may bring this action in
`the name of the Trust Fund pursuant to the express provisions of the Trust Agreement for the
`Trust Fund. The above named Trust Fund and its respective Board of Trustees shall hereinafter
`be designated collectively as “Plaintiff.”
`
`III.
`At all times material herein, Defendant Tyson Foods, Inc. (hereinafter referred to
`collectively as “Defendant”), has been an employer within the meaning of section 3(5) and
`section 515 of ERISA (29 U.S.C. §§ 1002(5), 1145) and an employer in an industry affecting
`commerce within the meaning of section 301 of the LMRA (29 U.S.C. § 185).
`
`ALLEGATIONS APPLICABLE TO ALL CLAIMS FOR RELIEF
`IV.
`At all relevant times, Butchers’ Union of the United Food & Commercial Workers Union
`Local 5 and 120 (hereinafter “Union”), a labor organization within the meaning of section 301 of
`the Labor Management Relations Act (29 U.S.C. § 185), and Defendant were signatory and
`bound to a collective bargaining agreement. The collective bargaining agreement by its terms
`incorporates the Trust Agreement establishing the Trust Fund. By said collective bargaining
`agreement, Defendant promised that it would contribute and pay to Plaintiff the monthly amount
`required by the collective bargaining agreement for eligible employees who performed work
`covered by said collective bargaining agreement, and that it would be subject to and bound by all
`of the terms, provisions and conditions of the Trust Agreement for the Trust Fund (“Trust
`
`2
` COMPLAINT FOR BREACH OF CONTRACT, DAMAGES, AND AUDIT
`Case No.
`
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`
`
`1 2 3 4 5 6 7 8 9
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`10
`11
`12
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`16
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`WEINBERG, ROGER &
`ROSENFELD
`A Professional Corporation
`1001 Marina Village Parkway, Suite 200
`Alameda, California 94501
`(510) 337-1001
`
`
`
`Case 4:20-cv-03380-KAW Document 1 Filed 05/18/20 Page 3 of 5
`
`
`
`Agreement”) (hereinafter the collective bargaining agreement and Trust Agreement are
`collectively referred to as “Agreements”).
`
`V.
`The Trust Agreement provides for prompt payment of all employer contributions to the
`Trust Fund and provides for liquidated damages, not as a penalty but as a reasonable attempt to
`provide for payments to cover the damages incurred by the Trust Fund in the event of a breach by
`the employer where it would have been impracticable or extremely difficult to ascertain the losses
`to the Trust Fund. The Trust Agreement also provides for the payment of interest on all
`delinquent contributions, attorneys’ fees, other collection costs, and for the audit of the signatory
`employer or employers’ books and records in order to permit the Plaintiff to ascertain whether all
`fringe benefit contributions have been timely paid as required by the Agreements and law.
`
`FIRST CLAIM FOR RELIEF
`(BREACH OF CONTRACT BASED ON AUDIT)
`VI.
`Plaintiff incorporates and realleges by reference all the allegations stated hereinabove.
`VII.
`Pursuant to the Agreements, an audit of the books and records of Defendant for the period
`of January 1, 2012 to December 31, 2016 was conducted, which revealed that fringe benefit
`contributions to the Trust Fund have not been submitted as required by said Agreements.
`VIII.
`Demand has been made of Defendant for payment of the amounts determined to be due
`and owing pursuant to the audit. To date, Defendant has refused to pay such amounts and there is
`now due, owing and unpaid to the Trust Fund from Defendant, fringe benefits contributions,
`liquidated damages and interest in the amount of at least $90,934.14 in relation to such unpaid
`contributions which have not been submitted to the Trust Fund as required by said Agreements.
`IX.
`Plaintiff is the intended third-party beneficiary of the collective bargaining agreement.
`Neither the Trust Fund nor the collective bargaining agreement evidence an intention to require
`the Health and Welfare Trust Fund to arbitrate disputes under the grievance procedure of the
`
`3
` COMPLAINT FOR BREACH OF CONTRACT, DAMAGES, AND AUDIT
`Case No.
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
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`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`WEINBERG, ROGER &
`ROSENFELD
`A Professional Corporation
`1001 Marina Village Parkway, Suite 200
`Alameda, California 94501
`(510) 337-1001
`
`
`
`Case 4:20-cv-03380-KAW Document 1 Filed 05/18/20 Page 4 of 5
`
`
`
`collective bargaining agreement. The Trust Fund is not required to exhaust the arbitration
`procedure of the collective bargaining agreement before seeking to enforce the Trust Agreement.
`X.
`Plaintiff has complied with all conditions on their part to be performed under the terms of
`the applicable Agreements.
`
`XI.
`Plaintiff is entitled to reasonable attorneys’ fees, interest, and other reasonable expenses
`incurred in connection with this matter due to Defendant’s failure and refusal to pay all fringe
`benefit contributions due and owing pursuant to the terms of the applicable Agreements, and
`ERISA section 502(g)(2) (29 U.S.C. § 1132(g)(2)).
`
`SECOND CLAIM FOR RELIEF
`(ACTUAL DAMAGES FOR BREACH OF CONTRACT)
`XII.
`Plaintiff incorporates and realleges by reference all the allegations stated above.
`XIII.
`Defendant failed, neglected and refused to make timely fringe benefit contributions as
`required by the applicable Agreements, and has caused Plaintiff actual damages in an amount to
`be proven at trial.
`
`THIRD CLAIM FOR RELIEF
`(AUDIT)
`XIV.
`Plaintiff incorporates and reallege by reference all the allegations stated above.
`XV.
`Plaintiff believes that additional amounts may be due and owing and also pray for an audit
`to determine same.
`WHEREFORE, Plaintiff prays judgment against Defendant as follows:
`1.
`That Defendant be ordered to pay contributions, liquidated damages and interest in
`the amount of at least $90,934.14 based on the audit of Defendant’s books and records;
`2.
`That Defendant be ordered to pay actual damages according to proof;
`3.
`That Defendant be compelled to submit to an audit by Plaintiff;
`
`4
` COMPLAINT FOR BREACH OF CONTRACT, DAMAGES, AND AUDIT
`Case No.
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`1 2 3 4 5 6 7 8 9
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`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
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`24
`25
`26
`27
`28
`WEINBERG, ROGER &
`ROSENFELD
`A Professional Corporation
`1001 Marina Village Parkway, Suite 200
`Alameda, California 94501
`(510) 337-1001
`
`
`
`Case 4:20-cv-03380-KAW Document 1 Filed 05/18/20 Page 5 of 5
`
`
`
`4.
`That this Court issue an Order permanently enjoining Defendant, for so long as it
`remains obligated to contribute to the Trust Fund, from failing to timely submit required monthly
`contributions reports and payments as required by the terms of the Agreements and ERISA
`sections 502(a)(3) and (g)(2), (29 U.S.C. § 1132(a)(3), (g)(2));
`5.
`That Defendant be ordered to pay Plaintiff’s attorneys’ fees;
`6.
`That Defendant be ordered to pay costs of suit herein; and
`7.
`That the Court grants such further relief as this Court deems just and proper.
`
`Dated: May 18, 2020
`
`
`
`149428\1083752
`
`
`
`By:
`
`
`WEINBERG, ROGER & ROSENFELD
`A Professional Corporation
`
`/s/ Tracy L. Mainguy
`TRACY L. MAINGUY
`Attorneys for Plaintiffs
`
`
`5
` COMPLAINT FOR BREACH OF CONTRACT, DAMAGES, AND AUDIT
`Case No.
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`WEINBERG, ROGER &
`ROSENFELD
`A Professional Corporation
`1001 Marina Village Parkway, Suite 200
`Alameda, California 94501
`(510) 337-1001
`
`