The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NATIONAL ROOFING INDUSTRY )
PENSION PLAN, et al., )
)
Plaintiffs, )
)
v. ) No. 4:18CV1862 JCH
)
TAYLOR ROOFING SOLUTIONS, INC., et )
al., )
)
Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Summary Judgment, filed July 2,
2021. (ECF No. 80). The motion is fully briefed and ready for disposition.
BACKGROUND1
On August 22, 2017, Defendant Taylor Roofing Solutions, Inc. (“Taylor Roofing
Solutions”) executed an agreement agreeing to be bound to the collective bargaining agreement
with the United Union of Roofers, Waterproofers & Allied Workers, Local Union No. 2, A.F.L.-
C.I.O. (hereinafter “Union”), effective through February 28, 2022 (hereinafter “CBA” or
“Agreement”). (Plaintiffs’ Statement of Uncontroverted Material Facts in Support of their
Motion for Summary Judgment (“Plaintiffs’ Facts”), ¶ 1). The Agreement requires Taylor
Roofing Solutions to make contributions to the National Roofing Industry Pension Plan
1 Plaintiffs submitted 37 purportedly uncontroverted material facts in support of their Motion for
Summary Judgment. (See ECF No. 82). Defendant Gerrit Yank responded to only the first five
facts, however. Thus, in contravention of this Court’s Local Rule 4.01(E), Defendant Yank
failed specifically to controvert Plaintiffs’ Facts 6-37. As a result, Defendant Yank is deemed to
have admitted those facts for purposes of summary judgment. See Thompson v. Normandy
Schools Collaborative, No. 4:19CV3220 MTS, 2021 WL 3286810, at *1 (E.D. Mo. Aug. 2,
2021).
(“Pension Plan”), the Roofers and Waterproofers Research and Education Joint Trust Fund, the
Roofers Local #2 Supplemental Pension Plan (“Supplemental Pension Plan”), the Indiana State
Council of Roofers Health and Welfare Fund (“Welfare Fund”), and the United Union of
Roofers and Allied Workers, Apprentice Fund (“Apprentice Fund”) (hereinafter collectively
referred to as the “Roofers Funds”), based on all hours worked by employees covered by the
CBA in its employ. (Id., ¶ 2). The Agreement further requires Taylor Roofing Solutions to
submit monthly contribution report forms showing the number of hours worked and
contributions due. (Id.).
Under the terms of the CBA, Taylor Roofing Solutions was at all relevant times obligated
to remit lawfully deducted dues to the Union, on the basis of all hours worked by employees
covered by the CBA in its employ. (Plaintiffs’ Facts, ¶ 3). The agreements require payment of
20% liquidated damages on delinquent contributions, as well as interest, attorneys’ fees, court
costs and payroll examination fees if suit is filed to enforce the agreements. (Id., ¶ 4).
Since signing the CBA on August 22, 2017, Taylor Roofing Solutions has performed
work covered by the CBA, but has failed to make all of the required contributions and lawful
dues deductions to Plaintiffs as required under the Agreement. (Plaintiffs’ Facts, ¶ 5). The CBA
provides in Article 41 that the Union and Taylor Roofing Solutions will submit “any disputes
arising between the parties” to the Roofers Local 2 Joint Adjustment Board (hereinafter “Joint
Adjustment Board” or “Board”). (Id., ¶ 6, quoting CBA, ECF No. 82-5, Article 41). The CBA
states the following regarding the authority of the Joint Adjustment Board:
The Board shall have the right to investigate all labor operations of the
parties to this Agreement within the jurisdiction of the Union, insofar as
any of the Articles of this Agreement are involved, including, but not
limited to, an Employer’s failure to pay the wages, overtime and any
benefits and to adhere to the ratios established hereunder which are
brought to the Board’s attention by written complaint, grievance or notice.
This Board shall have the right to summon, question and examine any
party to this Agreement, their representatives or agents. Said right shall
include the authority to audit the books of the party to this Agreement
against whom the grievance is filed with respect to verification of the
appropriate contributions to the Health and Welfare Fund, National
Roofing Industry Pension Plan, Roofers Supplemental Pension Fund,
Apprentice Fund, Industry Advancement Fund, Research and Education
Fund, and Dues Check-Off. The Board shall, in accordance with the By-
Laws of the Joint Adjustment Board, have the right to impose any remedy
available to the Board against Employees and Employers who have been
found to be in violation of the Agreement.
(Id., ¶ 7, quoting CBA Article 41). The CBA further provides that decisions, awards and orders
of the Board “shall be final and binding,” and that “[i]f found guilty by the Board, the Signatory
Employer or member of Local No. 2 shall be liable for all costs and attorney’s fees incurred in
investigating such activities and in collecting any fines imposed by the Board.” (CBA Article
41).
On or about December 6, 2017, the Union filed a grievance alleging that Taylor Roofing
Solutions had violated the applicable CBA. (See unanimous decision of the Joint Adjustment
Board dated January 11, 2018, ECF No. 82-7 (the “2018 Award”), P. 1). The Board held a
meeting on January 9, 2018, during which evidence was heard concerning the grievance. (Id., P.
2). Defendant Gerrit Yank, the owner of Taylor Roofing Solutions, appeared with Benjamin L.
Yousef, attorney for Taylor Roofing Solutions, and Cynthia Souter, a consultant with Burdzinski
and Partners, Inc. (Id.). During Taylor Roofing Solutions’ presentation of evidence, Defendant
Yank read a prepared statement and explained that he would not be answering any questions.
(Id.). Ms. Souter presented a document from the National Labor Relations Board (“NLRB”),
pertaining to a charge filed by the Union against Taylor Roofing Solutions, and a copy of the
charge itself. (Id.). Other than the prepared statement and the two NLRB documents, Taylor
Roofing Solutions failed to provide any evidence pertaining to the Union’s grievance. (Id.).2
After the hearing, the Joint Adjustment Board entered its unanimous decision in the 2018 Award,
in which it sustained the Union’s grievance, and found in part as follows:
In sustaining the Union’s grievance, the Board finds that Taylor Roofing
Solutions, Inc., Capitol Roofing Solutions, L.L.C., and Beltran
Contractors, LLC, are a single-employer as there is (1) common
ownership, (2) common management, (3) interrelation of operations, and
(4) common control of labor relations between them. While Taylor
Roofing Solutions, Inc., Capitol Roofing Solutions, L.L.C., and Beltran
Contractors, LLC, may have attempted to be organized as separate
entities, they are at most, separate divisions or departments of a single
enterprise, Taylor Roofing Solutions.
(Id., P. 3). The Board continued to find that Taylor Roofing Solutions had violated numerous
provisions of the CBA. (Id.). It then ordered the following remedy:
1. Taylor Roofing Solutions is liable for any and all unpaid wages and
benefits that were required to be paid under the collective bargaining
agreement on behalf of or to any employees performing work covered by the
collective bargaining agreement who worked for Taylor Roofing Solutions
under it as well as under the name of [Capitol Roofing Solutions, L.L.C.] or
Beltran Contractors in an amount to be determined after the completion of the
payroll audit described below….
2. Additionally, the Board orders Taylor Roofing Solutions to submit to a
payroll audit to be conducted within 60 days of the date of this decision to
determine a dollar amount for any and all unpaid wages, overtime, dues, and
benefits that were required to be paid under the collective bargaining
agreement. The Board will hire a payroll auditor of its own choosing to
conduct this payroll audit. The cost of the payroll audit is to be paid by
Taylor Roofing Solutions.
3. The Board further orders Taylor Roofing Solutions to provide any and all
documents necessary for the completion of the payroll audit that are requested
by the auditor, including any documents pertaining to [Capitol Roofing
Solutions, L.L.C.] or Beltran Contractors….
2 In his prepared statement, Defendant Yank indicated that Taylor Roofing Solutions simply
denied the allegations in the grievance, and that the Board should dismiss the grievance and
allow the NLRB to decide the dispute, as there were similarities between the grievance and the
charge currently pending before the NLRB. (See 2018 Award, P. 2).
(Id., P. 4). The Board finally noted as follows:
After the final completion of the payroll audit the Board will schedule a
second Board meeting concerning this grievance to be scheduled within 30
days after the final completion of the payroll audit, the purpose of which
will be to hear evidence from both the Union and Taylor Roofing
Solutions regarding the results of the payroll audit and the specific amount
of damages to be awarded by the Board….As a result of the Board finding
that Taylor Roofing Solutions, [Capitol Roofing Solution, L.L.C.], and
Beltran Contractors are a single employer, then Taylor Roofing Solutions,
[Capitol Roofing Solution, L.L.C.], and Beltran Contractors are jointly and
severally liable for the contractual violations and the amounts to be
awarded as a result of this Decision. As noted in Article 41 of the
collective bargaining agreement, all decisions, awards and orders of the
Joint Adjustment Board are final and binding.
(Id., P. 5).
Plaintiffs filed their original Complaint in this matter on October 30, 2018. (ECF No. 1).
In Count I of their Second Amended Complaint, filed April 5, 2019, Plaintiffs allege Defendant
Taylor Roofing Solutions has been a party to a CBA with the Union since at least August 22,
2017. (Second Amended Complaint, ¶ 25). Plaintiffs allege that although the CBA required
Taylor Roofing Solutions to, among other things, make monthly contributions to the Roofers
Funds, and make monthly written reports to Plaintiffs, Taylor Roofing Solutions has failed to
make the required contributions, submit the required reports, or submit to a payroll audit. (Id., ¶¶
28-37). Plaintiffs thus maintain Taylor Roofing Solutions is in breach of the CBA and in
violation of Section 515 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§ 1145. (Id., ¶¶ 38-42). Plaintiffs seek to hold Defendant Gerrit Yank, the sole owner of Taylor
Roofing Solutions, personally liable for any and all obligations incurred by Taylor Roofing
Solutions.3 (Id., ¶¶ 11, 46). In Counts II and III, Plaintiffs seek to hold Defendants Capitol
3 According to Plaintiffs, Taylor Roofing Solutions was administratively dissolved in the State of
Missouri on or about October 17, 2018, and in the State of Illinois on or about November 9,
2018. (Second Amended Complaint, ¶ 12). Plaintiffs maintain Gerrit Yank nevertheless
Roofing Solutions and Beltran Contractors liable for damages, claiming they either have
operated as a single enterprise and single employer with Taylor Roofing Solutions, and/or each is
the alter ego of the other. (Id., ¶¶ 47-59).
Counts IV and V of Plaintiffs’ Second Amended Complaint are brought solely by the
Union. (Second Amended Complaint, ¶¶ 60, 82). The Union claims the CBA between itself and
Taylor Roofing Solutions required the submission of any disputes arising between the parties to
the Joint Adjustment Board. (Id., ¶ 62). The Joint Adjustment Board then had the power to
investigate claims and impose remedies, and decisions, awards and orders of the Joint
Adjustment Board were final and binding. (Id., ¶¶ 63, 64). The Union claims the Joint
Adjustment Board held a hearing to decide a grievance filed by Roofers Local 2 against Taylor
Roofing Solutions, and sustained the grievance in a unanimous decision dated January 11, 2018.
(Id., ¶¶ 66-72). The Joint Adjustment Board ordered Taylor Roofing Solutions to submit to a
payroll audit to determine the amount owed to the Union. (Id., ¶¶ 73-74). The Union claims that
despite this directive, Taylor Roofing Solutions has failed and refused to provide all of the
documents necessary for the completion of the payroll audit. (Id., ¶ 77). In Counts IV and V,
the Union thus requests that the Court confirm the arbitration award, order an accounting and
audit to determine the amounts due and owing, and award the Union any and all available relief.4
Shortly after Plaintiffs filed their Second Amended Complaint, the NLRB issued its
decision on the charge filed by the Union. (Plaintiffs’ Facts, ¶ 24). In its June 28, 2019,
continued to operate and carry on business, in a manner other than for winding up and
liquidating its affairs, under the name Taylor Roofing Solutions after the dissolution, and thus is
personally liable for obligations incurred by the corporation. (Id., ¶¶ 12, 13).
4 Plaintiffs note that more than ninety days has passed since the Joint Adjustment Board issued
its Award and delivered same to Taylor Roofing Solutions, and Taylor Roofing Solutions has not
moved to vacate, modify, or correct the Award within the time limits allowed by law. (Second
Amended Compl., ¶¶ 80, 81).
Decision and Order the NLRB, among other things, found Capitol Roofing Solutions, LLC, to be
a single employer with Taylor Roofing Solutions, and found that Capitol Roofing Solutions,
LLC, has been bound by the CBA with the Union since about August 22, 2017. (Id., ¶¶ 24, 25
and Plaintiffs’ Exh. 7). The NLRB further ordered Taylor Roofing Solutions and Capitol
Roofing Solutions, LLC, to, in relevant part:
(d) Make all contractually required benefit contributions that have not
been made since about August 22, 2017, and reimburse unit employees for
any expenses ensuing from its failure to make such payments, with
interest, in the manner set forth in the remedy section of this decision.
(Id., ¶ 26, quoting Plaintiffs’ Exh. 7, P. 4). Taylor Roofing Solutions and Capitol Roofing
Solutions, LLC, have not complied with the NLRB Decision, and have not made all of the
required benefit contributions ordered by the NLRB. (Id., ¶ 27).
On June 11, 2019, James G. Nowogrocki and the law firm of Heyl, Royster, Voeker &
Allen P.C., moved to withdraw as legal counsel for Defendants Taylor Roofing Solutions, Gerrit
Yank, Taylor Roofing Solutions, Inc., d/b/a Capitol Roofing Solutions, Capitol Roofing
Solutions, LLC, and Beltran Contractors, LLC. (ECF No. 26). After temporarily holding Heyl,
Royster’s motion for leave to withdraw as counsel in abeyance, and ordering Defendants to
obtain substitute counsel, the Court granted the motion in an Order entered September 10, 2019.
(ECF No. 36). With respect to the corporate Defendants, the Court ordered Plaintiffs to file
motions to strike their pleadings, and for entry of default and, if appropriate, default judgment.
With respect to Defendant Yank, the Court confirmed that from that point forward, he would
have to proceed without the assistance of counsel.
Plaintiffs filed the requested motions on October 9 and 10, 2019, and the Court granted
their Motion to Strike Corporate Defendants’ Pleadings, Request for Clerk’s Entry of Default,
and Motion for Entry of Partial Default Judgment and Default Order to Compel Accounting on
October 11 and 16, 2019. (See ECF Nos. 37-42). In its Order granting Plaintiffs’ Motion for
Entry of Partial Default Judgment and Default Order to Compel Accounting, the Court held as
follows:
(1) That Defendants Taylor Roofing Solutions, Inc., Taylor Roofing Solutions, Inc.,
d/b/a Capitol Roofing Solutions, Capitol Roofing Solutions, L.L.C., and Beltran
Contractors, LLC, have operated as a single enterprise and single employer, such that
each of them is bound to the collective bargaining agreement with the United Union
of Roofers, Waterproofers and Allied Workers, Local Union No. 2, AFL-CIO (“the
Union”) and are jointly and severally liable for the amounts found to be owed to
Plaintiffs;
(2) That Defendants Capitol Roofing Solutions, L.L.C., and Beltran Contractors, LLC,
are jointly and severally liable for all amounts owed by Defendant Taylor Roofing
Solutions, Inc. to Plaintiffs as Defendants Capitol Roofing Solutions, L.L.C., and
Beltran Contractors, LLC, are alter egos of Taylor Roofing Solutions, Inc., such that
each of them is bound to the collective bargaining agreement with the Union;
(3) That the decision issued by the Roofers Local 2 Joint Adjustment Board on
January 12, 2018 is confirmed; and
(4) That Defendants Taylor Roofing Solutions, Inc., Taylor Roofing Solutions, Inc.,
d/b/a Capitol Roofing Solutions, Capitol Roofing Solutions, L.L.C., and Beltran
Contractors, LLC, shall submit to a financial examination for the period of August 22,
2017, to date within thirty (30) days of this Court’s order.
(ECF No. 42).5 After Plaintiffs filed a Motion for Contempt as a result of the corporate
Defendants’ failure to comply with the Court’s Order, they eventually received the documents
required to permit their accountants to complete the payroll examination. The payroll
compliance examination of records covered the time period of August 22, 2017, through May 31,
2019. (See Affidavit of M. Joseph Romolo, attached to Plaintiffs’ Facts, ¶ 4). The examination
5 On October 12, 2020, attorney Robb E. Hellwig of the law firm Stone, Leyton & Gershman,
P.C., entered his appearance as counsel on behalf of Defendant Beltran Contractors, LLC. (ECF
No. 59). The Court granted Defendant Beltran Contractors, LLC’s Motion to Set Aside Entry of
Partial Default and Order of Partial Default Judgment on November 9, 2020. (See ECF Nos. 60,
64). Plaintiffs and Defendant Beltran Contractors, LLC, eventually entered into a Settlement
Agreement, and Plaintiffs stipulated to the dismissal of Defendant Beltran Contractors, LLC,
with prejudice on August 4, 2021. (ECF No. 86).
found that Defendants owed $835,941.14 in unpaid contributions to Plaintiffs. (Id. and
Plaintiffs’ Exh. 1).6 It further found that Defendants owed $163,243.58 in unpaid wages, and
$48,542.20 in unremitted working dues, to the Union. (Id., ¶ 5 and Plaintiffs’ Exh. 2). Finally,
the audit found that Defendants owed $13,835.00 in payroll examination fees. (Id., ¶ 6).
Plaintiffs state that the $835,941.14 in unpaid contributions, $163,243.58 in unpaid wages, $48,
542.20 in unremitted working dues to the Union, $13,835.00 in payroll examination fees, and
$167,188.23 in liquidated damages remain unpaid. (Plaintiffs’ Facts, ¶ 17).
After the completion of the payroll audit, the Joint Adjustment Board held a hearing on or
about January 19, 2021, to determine the specific amount of damages to be awarded based on the
Board’s 2018 Award. (Plaintiffs’ Facts, ¶ 18). The Board gave prior notice to Taylor Roofing
Solutions of the hearing and the issues to be considered, and Taylor Roofing Solutions, through
Defendant Yank, appeared and participated in the Joint Adjustment Board hearing on January
19, 2021. (Id., ¶¶ 19, 20). After the hearing, the Board entered its findings in a unanimous
decision dated January 22, 2021 (the “2021 Award”), in which it held in relevant part as follows:
During the hearing Taylor Roofing Solutions, Inc. admitted to being
bound to the collective bargaining agreement and all its terms contained
therein. Taylor Roofing Solutions also conceded it had all opportunity to
present information and documents it desired to be reviewed during the
months the payroll audit was being conducted and the audit was based
upon those provided documents.
Taylor Roofing Solutions, Inc. stated it did not believe some of the
individuals contained in the payroll audit were “roofers” but instead
performed only the work of other trades. Other than bald assertions, no
persuasive evidence in the form of objectively reliable records, affidavits,
or proof of this were presented to the Board to support this contention. To
the contrary, among the records Taylor Roofing Solutions submitted
included certified payroll signed under penalty of perjury to the US Dept.
6 Dennis Marshall, Jr., Business Manager of the Union, submitted an affidavit in which he
attested that Defendants further owe Plaintiffs $167,188.23 in liquidated damages on the unpaid
contributions. (See Affidavit of Dennis Marshall, Jr., attached to Plaintiffs’ Facts, ¶ 20).
of Labor that individuals were paid under the occupational title of
“Roofer”.
After considering the evidence submitted by the parties, the Board
pursuant to the authority given to it under Article 41 of the collective
bargaining agreement hereby awards the following monetary remedy and
finds Taylor Roofing Solutions to be liable in the amount of
$1,289,580.15, which consists of the following amounts:
1. $835,941.14 in unpaid fringe benefit contributions;
2. $167,188.23 in liquidated damages (20% of unpaid
contributions);
3. $48,542.20 in unremitted working dues;
4. $163,243.58 in unpaid wages;
5. $13,835 in accounting costs; and
6. Attorneys’ fees in the amount of $60,830….
As a result of the Board finding that Taylor Roofing Solutions, [Capitol
Roofing Solutions, L.L.C.], and Beltran Contractors are a single employer,
then Taylor Roofing Solutions, [Capitol Roofing Solutions, L.L.C.], and
Beltran Contractors are jointly and severally liable for the contractual
violations and the amounts to be awarded as a result of this Decision. As
noted in Article 41 of the collective bargaining agreement, all decisions,
awards and orders of the Joint Adjustment Board are final and binding.
(Joint Adjustment Board 2021 Award, attached to Plaintiffs’ Facts as Exh. 6, PP. 2-3). The
Board stated that it would “entertain a motion to reconsider these findings if submitted in the
next ten (10) days by email to the Board and its counsel,” but cautioned as follows: “The only
issue and evidence the Board will entertain is that which goes to show individuals who did not
perform roofing work at any time during their tenure with Taylor Roofing Solutions or its
associated entities. Taylor Roofing Solutions is specifically cautioned that the Board will not
rely upon submitted evidence that is not objectively supported by reliable and verifiable
evidence.” (Id., P. 2). Defendants did not file a timely motion to reconsider the Joint
Adjustment Board’s findings. (Plaintiffs’ Facts, ¶ 23).
In their Motion for Summary Judgment, filed July 2, 2021, Plaintiffs claim there exist no
genuine issues of material fact and Plaintiffs are entitled to judgment as a matter of law. (ECF
No. 80). Specifically, Plaintiffs assert that because Defendant Yank continued to carry on the
business of Taylor Roofing Solutions after its administrative dissolution in both the State of
Missouri and the State of Illinois, without taking steps to wind up or reinstate the corporation, he
is individually liable for the amounts owed by Taylor Roofing Solutions in this matter.
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if, “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The substantive law determines which facts are critical and which are irrelevant. Only disputes
over facts that might affect the outcome will properly preclude summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party
must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material
fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson,
477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its
pleadings. Anderson, 477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255. The Court’s function is not to weigh the evidence, but to determine
whether there is a genuine issue for trial. Id. at 249.
DISCUSSION
In their Motion for Summary Judgment, Plaintiffs seek judgment against the owner of
Defendant Taylor Roofing Solutions, Defendant Gerrit Yank. Plaintiffs maintain there exist no
genuine issue of material facts as to the liability of Defendants Taylor Roofing Solutions, Taylor
Roofing Solutions, Inc., d/b/a Capitol Roofing Solutions, and Capitol Roofing Solutions, L.L.C.7
Plaintiffs seek to hold Defendant Gerrit Yank, the owner of Taylor Roofing Solutions,
individually liable for carrying on the business of Taylor Roofing after its administrative
dissolution in both Missouri and Illinois, without taking steps to wind up or reinstate the
corporation.
I. Corporate Defendants’ Liability
As noted above, the Joint Adjustment Board entered an order in January, 2018, in which
it sustained the Union’s grievance, and found that Taylor Roofing Solutions, Inc. and Capitol
Roofing Solutions, L.L.C. were a single-employer. (2018 Award, P. 3). The Board continued to
hold that Taylor Roofing Solutions was liable “for any and all unpaid wages and benefits that
were required to be paid under the collective bargaining agreement on behalf of or to any
employees performing work covered by the collective bargaining agreement who worked for
Taylor Roofing Solutions under it as well as under the name of [Capitol Roofing Solutions,
L.L.C.]…in an amount to be determined after the completion of the payroll audit described
below.” (Id., P. 4). This Court confirmed the Joint Adjustment Board’s decision in an Order
entered October 16, 2019, and held (1) that Defendants Taylor Roofing Solutions, Taylor
Roofing Solutions, Inc., d/b/a Capitol Roofing Solutions, and Capitol Roofing Solutions, L.L.C.
have operated as a single enterprise and single employer, such that each of them is bound to the
7 As noted above, Plaintiffs settled with Defendant Beltran Contractors, LLC, and thus do not
seek a judgment against it in their motion.
collective bargaining agreement with the Union; and (2) that said Defendants are jointly and
severally liable for the amounts found to be owed to Plaintiffs. (ECF No. 42).
Furthermore, in its June 28, 2019, Decision and Order, the NLRB found that Capitol
Roofing Solutions, LLC, was a single employer with Taylor Roofing Solutions, and thus had
been bound by the CBA with the Union. (Plaintiffs’ Exh. 7, P. 1). The NLRB further ordered
Taylor Roofing Solutions and Capitol Roofing Solutions, LLC, to make all contractually
required benefit contributions that had not been made since about August 22, 2017, and to
reimburse unit employees for any expenses ensuing from its failure to make such payments, with
interest.
ERISA § 502(g)(2), 29 U.S.C. § 1132(g)(2), provides as follows:
In any action under this subchapter by a fiduciary for or on behalf of a
plan to enforce Section 11458 of this title in which a judgment in favor of
the plan is awarded, the court shall award the plan—
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of--
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an
amount not in excess of 20 percent…of the amount
determined by the court under subparagraph (A),
(D) reasonable attorney’s fees and costs of the action, to be paid
by the defendant, and
(E) such other legal or equitable relief as the court deems
appropriate.
This Court has held that the relief provided for in ERISA § 502(g)(2), 29 U.S.C. § 1132(g)(2), is
mandatory. See, e.g., St. Louis-Kansas City Carpenters Regional Council v. J.B. Carpentry
Services, Inc., No. 4:17CV751 RWS, 2017 WL 1426023, at *2 (E.D. Mo. Apr. 21, 2017); St.
8 Section 1145 provides as follows: “Every employer who is obligated to make contributions to
a multiemployer 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.” See 29 U.S.C. § 1145.
Louis-Kansas City Carpenters Regional Council v. Edwards-Kamadulski, LLC, No. 4:16CV302
NCC, 2016 WL 1624019, at *1 (E.D. Mo. Apr. 25, 2016).
The payroll compliance examination of records conducted by Plaintiffs found that
Defendants owed $835,941.14 in unpaid contributions, $163,243.58 in unpaid wages, $48,542.20
in unremitted working dues to the Union, and $13,835.00 in payroll examination fees.9 After the
completion of the payroll audit, the Joint Adjustment Board held a second hearing, to determine
the specific amount of damages to be awarded based on the Board’s 2018 Award. As noted
above, Taylor Roofing Solutions, through Defendant Yank, appeared and participated in the
Joint Adjustment Board hearing on January 19, 2021. In its decision, issued January 22, 2021,
the Board noted that Taylor Roofing Solutions stated it did not believe some of the individuals
contained in the payroll audit were roofers, but it failed to provide “evidence in the form of
objectively reliable records, affidavits, or proof of this…to support this contention.” (2021
Award, P. 2). The Board then found Taylor Roofing Solutions liable in the amount of
$1,289,580.15, which consisted of $835,941.14 in unpaid fringe benefit contributions,
$167,188.23 in liquidated damages, $48,542.20 in unremitted working dues, $163,243.58 in
unpaid wages, $13,835 in accounting costs, and $60,830 in attorneys’ fees.
“With respect to damages in an action for delinquent fringe benefit contributions, the
findings of a plaintiff’s accountant are deemed presumptively valid.” Painters Dist. Council 2 v.
Grau Contracting, Inc., No. 4:10CV2339 AGF, 2012 WL 2848708, at *1 (E.D. Mo. Jul. 11,
2012). Thus Defendant Yank, as the employer, has the burden of producing evidence to counter
the findings of the audit. See Painters Dist. Council No. 58 v. JohnEd, Inc., No. 4:17CV1271
JMB, 2019 WL 118549, at *2 (E.D. Mo. Jan. 7, 2019). Furthermore, awards by the Joint
9 Pursuant to the terms of both the CBA and ERISA, Defendants are also liable to Plaintiffs for
liquidated damages in the amount of twenty percent of the unpaid contributions, or $167,188.23.
Adjustment Board are treated the same as arbitration awards, and governed by the Missouri
Uniform Arbitration Act and Section 301 of the Labor Management Relations Act. See Local 2,
Intern. Broth. Of Elec. Workers, AFL-CIO v. Anderson Underground Const., Inc., 907 F.2d 74,
75 (8th Cir. 1990). With respect to arbitration awards, Missouri courts have held that in the
absence of a motion to vacate the award, “confirmation under the statue is mandatory.” Hart v.
Metzger, 834 S.W.2d 236, 238 (Mo. App. 1992); see also Doyle v. Thomas, 109 S.W.3d 215,
218 (Mo. App. 2003). As noted above, Defendants did not file a timely motion to reconsider the
Joint Adjustment Board’s findings.
In his response to Plaintiffs’ motion here, Defendant Yank attempts to offer evidence that
several workers were not covered under the CBA, and that many subcontractors from which the
Union claims dues are not within their jurisdiction. (See ECF Nos. 91, 92). He attaches several
hundred pages of exhibits to his responses, but does not cite to relevant portions of said exhibits.
This Court “has no obligation to go digging through the record to find the support that
[Defendant Yank] has omitted,” however. Cigainero v. Carnival Corp., 426 F.Supp.3d 1299,
1301 (S.D. Fla. 2019); see also Thompson, 2021 WL 3286810, at *1 (same). Furthermore, as
noted by Plaintiffs, Defendant Yank’s assertions are largely the same as those made before and
rejected by the Board in its 2021 Award.
Upon consideration of the foregoing, the Court finds that confirmation of the 2021 Award
is mandatory. It therefore will confirm the 2021 Award, and hold Defendants Taylor Roofing
Solutions and Capitol Roofing Solutions, L.L.C. liable in the amount of $1,228,750.15, plus
attorneys’ fees to be determined at a later date.10
10 As explained infra with respect to Defendant Yank, Defendants Taylor Roofing Solutions and
Capitol Roofing Solutions, L.L.C. may be entitled to a set-off for amounts paid by Beltran
Contractors in settlement of Plaintiffs’ claims against it.
II. Defendant Yank’s Individual Liability
In their Motion for Summary Judgment, Plaintiffs note that Defendant Yank is the sole
owner of Taylor Roofing Solutions. (Plaintiffs’ Facts, ¶ 29). They further maintain that Taylor
Roofing Solutions was administratively dissolved in the State of Missouri on or about October
17, 2018, and in the State of Illinois on or about November 9, 2018. (Id., ¶ 32). Despite the
dissolutions, Plaintiffs assert as follows:
33. Taylor Roofing Solutions entered into a Subcontract Agreement with S.M.
Wilson & Co. to perform work on a project known as St. Peters Apartment
Development—Propper (hereafter referred to as “St. Peters Apartment Project”)
located at 5130 Mexico Road, St. Peters, Missouri 63376.
34. The Subcontract Agreement with S.M. Wilson & Co. for the St. Peters
Apartment Project was fully signed on November 5, 2018.
35. The St. Peters Apartment Project was to begin on October 1, 2018 and end
on March 1, 2019.
36. The Subcontract Agreement provided that Taylor Roofing Solutions was
to be paid $622,485.00 for the project.
37. Taylor Roofing Solutions submitted Affidavits of Subcontractor for work
completed on the St. Peters Apartment Project, dated October 28, 2018;
December 21, 2018; and January 21, 2019.
(Id., ¶¶ 33-37). In light of the foregoing, Plaintiffs assert that rather than winding up and
liquidating the business and affairs of Taylor Roofing Solutions, or seeking its reinstatement as a
corporation, Defendant Yank continued to carry on the business of Taylor Roofing Solutions
after the dissolutions. Defendant Yank does not deny any of Plaintiffs’ allegations.
Both Missouri and Illinois law provide that under certain circumstances, individuals who
continue to conduct business on behalf of a dissolved corporation may be held personally liable
for obligations incurred. For example, Missouri Revised Statute § 351.486.3 provides as
follows: “A corporation administratively dissolved continues its corporate existence but may not
carry on any business except that necessary to wind up and liquidate its business and affairs
under section 351.476 and notify claimants under sections 351.478 and 351.482, and any officer
or director who conducts business on behalf of a corporation so dissolved except as provided in
this section shall be personally liable for any obligation so incurred.” Furthermore, 805 ILCS
5/8.65(a)(3) provides in relevant part as follows: “Unless dissolution is subsequently revoked
pursuant to Section 12.25 of this Act, the directors of a corporation that carries on its business
after the filing by the Secretary of State of articles of dissolution with respect to a voluntary
dissolution authorized as provided by this Act, otherwise than as necessary or appropriate to
wind up and liquidate its business and affairs, shall be jointly and severally liable to the creditors
of such corporation for all debts and liabilities of the corporation incurred in so carrying on its
business.” See also 805 ILCS 5/3.20 (“All persons who assume to exercise corporate powers
without authority so to do shall be jointly and severally liable for all debts and liabilities incurred
or arising as a result thereof.”).
The Court agrees with Plaintiffs that, pursuant to the cited statutes, the possibility exists
that Defendant Yank may be personally liable for some or all of the incurred liabilities. In
seeking to hold Defendant Yank liable for the debts of Taylor Roofing Solutions, however,
Plaintiffs rely on the payroll examination performed by Plaintiffs’ accountants for the time
period of August 22, 2017, through May 31, 2019. Plaintiffs acknowledge that Taylor Roofing
Solutions was administratively dissolved in the State of Missouri on or about October 17, 2018,
and in the State of Illinois on or about November 9, 2018. The Court finds Defendant Yank may
only be held liable for liabilities incurred after the effective dates of the dissolutions. See, e.g.,
Local 513, Intern. Union of Operating Engineers, AFL-CIO v. Susie’s Constr., Inc., No.
4:10CV1250 RWS, 2010 WL 3724871 (E.D. Mo. Sep. 17, 2010) (holding individual defendants
liable for debts incurred from 2007 on, by a corporation that was administratively dissolved in
1998); Laborers’ Pension Fund v. Nationwide Environmental, No. 11 C 500, 2011 WL
10755892, at *2 (N.D. Ill. Mar. 16, 2011) (internal quotation marks and citation omitted)
(emphasis added) (“Illinois courts have consistently held that officers can be personally liable for
debts incurred on behalf of the former corporation after it had been dissolved.”). Thus, because
Plaintiffs fail to distinguish between debts incurred before and after the dissolutions of Taylor
Roofing Solutions, the Court finds that genuine issues of material fact remain with respect to the
issue of damages, and so Plaintiffs’ Motion for Summary Judgment must be denied.11
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Summary Judgment (ECF No.
80) is DENIED, in accordance with the foregoing.
IT IS FURTHER ORDERED that this matter is set for a NON-JURY trial on April 4,
2022, at 9:00 A.M.
Dated this 24th Day of January, 2022.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
11 In addition to the above, during the trial of this matter the Court will entertain evidence on the
issue of whether and to what extent Defendant Yank is entitled to a set-off of any amounts due as
a result of Plaintiffs’ settlement with former Defendant Beltran Contractors.