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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CAROL A. WILSON, :

Administrator of Ohio : Civil Action No. 2:17-CV-913

Operating Engineers Health :

and Welfare Plan, Ohio :

Operating Engineers Pension : Judge 

Fund, Ohio Operating Engineers :

Apprenticeship and Training Fund, and :

Ohio Operating Engineers Education : Magistrate Judge 

and Safety Fund :

:

1180 Dublin Road :

Columbus, Ohio 43215, :

:

and :

:

Trustees of the Ohio Operating :

Engineers Health and Welfare :

Plan, Ohio Operating Engineers :

Pension Fund, Ohio Operating :

Engineers Apprenticeship and Training :

Fund, and Ohio Operating Engineers :

Education and Safety Fund :

:

1180 Dublin Road :

Columbus, Ohio 43215, :

:

Plaintiffs, :

:

v. :

:

Waugh Excavating LLC :

12784 State Route 218 :

Crown City, Ohio 45623-9267 :

:

Defendant. :

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COMPLAINT

JURISDICTION AND VENUE

1. Jurisdiction of this Court is based upon 29 U.S.C. §§ 1132(a)(3) and 1145, 

as the action arises from Defendant's violation of and continued refusal to comply with the terms 

and provisions of collectively-bargained agreements, trust agreements, and employee-benefit 

plans. Venue is proper pursuant to 29 U.S.C. § 1132(e)(2) and S.D. Ohio Civ. R. 82.1.

COUNT I

2. The Trustees of the Ohio Operating Engineers Health and Welfare Plan 

(hereinafter referred to as the "Health and Welfare Trustees") are the duly appointed, qualified, 

and acting trustees of the trust established as part of the Ohio Operating Engineers Health and 

Welfare Plan by Amended Agreement and Declaration of Trust dated November 29, 1977, as 

amended, (hereinafter referred to as the "Health and Welfare Trust") between the Labor 

Relations Division of the Ohio Contractors Association, the Associated General Contractors of 

America, and other employer associations, and the International Union of Operating Engineers, 

Locals Nos. 18, 18A, and 18B, a labor organization representing employees in an industry 

affecting commerce. The Health and Welfare Trustees bring this action in their fiduciary 

capacity as trustees for and on behalf of the participants and beneficiaries of the Health and 

Welfare Trust. The Health and Welfare Trust constitutes an "employee benefit plan" or "plan" 

within the meaning of 29 U.S.C. §§ 1002(1), (2), (3), and 29 U.S.C. § 1132. The plan is 

administered in Columbus, Ohio.

3. The Health and Welfare Trustees have authorized Carol A. Wilson, 

Administrator of the Ohio Operating Engineers Health and Welfare Plan, to bring this claim and 

to seek the remedy prayed for on their behalf and on behalf of the participants and beneficiaries 

of the Health and Welfare Trust and employee benefit plan.

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4. Waugh Excavating LLC is an Ohio corporation with its principal place of 

business in Crown City, Ohio, and at all relevant times has been engaged in an industry affecting 

commerce, i.e., contracting work. 

5. Defendant is an employer engaged in commerce and in an industry 

affecting commerce within the meaning of 29 U.S.C. § 1003.

6. Defendant executed a 2000 Hour Addendum Agreement dated May 10, 

2013, a 2013-2017 Highway Heavy Construction Agreement dated November 13, 2013 and a

2013-2017 Non-AGC of Ohio/LRD Members Agreement dated July 7, 2014, by the terms of 

which Defendant also became a party to the Agreement and Declaration of Trust (the "Health 

and Welfare Trust Agreement") that established the Ohio Operating Engineers Health and 

Welfare Plan, and became bound by the terms and conditions set forth therein. Copies of the 

signatory pages of the 2000 Hour Addendum Agreement, the 2013-2017 Highway Heavy 

Construction Agreement and the 2013-2017 Non-AGC of Ohio/LRD Members Agreement are

attached and marked "Exhibit A" and incorporated herein. These agreements contain provisions 

whereby Defendant agreed to make timely payments to the Health and Welfare Trustees for each 

employee covered by the agreement. 

7. Defendant has failed to make timely payments to the Health and Welfare 

Trustees for each covered employee and has failed to perform the obligations imposed by the 

terms and conditions of the 2000 Hour Addendum Agreement dated May 10, 2013, the 2013-

2017 Highway Heavy Construction Agreement dated November 13, 2013 and the 2013-2017 

Non-AGC of Ohio/LRD Members Agreement dated July 7, 2014 and the Health and Welfare 

Trust Agreement. 

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8. The Trustees' Field Auditor audited Defendant's payroll records on May

25, 2017. This audit disclosed unpaid contributions for the period October 1, 2015 to May 1, 

2017, owed to the Health and Welfare Trustees. Defendant is delinquent in making contributions 

to the Health and Welfare Trustees in the total amount of $16,517.40. 

COUNT II

9. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 

8 above as fully as if rewritten herein and further state that the Trustees of the Ohio Operating 

Engineers Pension Fund (hereinafter referred to as the "Pension Trustees") are the duly 

appointed, qualified, and acting trustees of the trust established as a part of the Ohio Operating 

Engineers Pension Fund by Amended Agreement and Declaration of Trust dated September 4, 

1986, as amended, (hereinafter referred to as the "Pension Trust") between the Labor Relations 

Division of the Ohio Contractors Association, the Associated General Contractors of America, 

and other employer associations, and the International Union of Operating Engineers, Locals 

Nos. 18, 18A, and 18B, a labor organization representing employees in an industry affecting 

commerce. The Pension Trustees bring this action in their fiduciary capacity as trustees for and 

on behalf of the participants and beneficiaries of the Pension Trust. The Pension Trust 

constitutes an "employee benefit plan" or "plan" within the meaning of 29 U.S.C. §§ 1002(1), 

(2), (3), and 29 U.S.C. § 1132. The plan is administered in Columbus, Ohio.

10. The Pension Trustees have authorized Plaintiff Carol A. Wilson, 

Administrator of the Ohio Operating Engineers Pension Fund, to bring this claim and to seek the 

remedy prayed for on their behalf, and on behalf of the participants and beneficiaries of the 

Pension Trust and employee benefit plan.

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11. Under the provisions of the agreements described in paragraph 6 above, 

Defendant became a party to the Agreements and Declaration of Trust (the "Pension Trust 

Agreement") that established the Ohio Operating Engineers Pension Fund, and became bound by 

the terms and conditions set forth therein. The 2000 Hour Addendum Agreement dated May 10, 

2013, the 2013-2017 Highway Heavy Construction Agreement dated November 13, 2013 and the 

2013-2017 Non-AGC of Ohio/LRD Members Agreement dated July 7, 2014 and the Pension 

Trust Agreement contain provisions whereby Defendant agreed to make timely payments to the 

Pension Trustees for each employee covered by the agreements.

12. Defendant has failed to make timely payments to the Pension Trustees for 

each covered employee and has failed to perform the obligations imposed by the terms and 

conditions of the 2000 Hour Addendum Agreement dated May 10, 2013, the 2013-2017 

Highway Heavy Construction Agreement dated November 13, 2013 and the 2013-2017 NonAGC of Ohio/LRD Members Agreement dated July 7, 2014 and the Pension Trust Agreement. 

13. The Trustees' audit disclosed unpaid contributions owed for the period

October 1, 2015 to May 1, 2017 to the Pension Trustees. Defendant is delinquent in making 

contributions to the Pension Trustees in the total amount of $8,646.00. 

COUNT III

14. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 

13 above as fully as if rewritten herein and further state that the Trustees of the Ohio Operating 

Engineers Apprenticeship and Training Fund (hereinafter referred to as the "Apprenticeship and 

Training Trustees") are the duly appointed, qualified, and acting trustees of the trust established 

as a part of the Ohio Operating Engineers Apprenticeship and Training Fund by the Third 

Amended Agreement and Declaration of Trust dated December 31, 1992, as amended, 

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(hereinafter referred to as the "Apprenticeship and Training Trust") between the Labor Relations 

Division of the Ohio Contractors Association, the Associated General Contractors of America, 

and other employer associations, and the International Union of Operating Engineers, Locals 

Nos. 18, 18A, and 18B, a labor organization representing employees in an industry affecting 

commerce. The Apprenticeship and Training Trustees bring this action in their fiduciary 

capacity as trustees for and on behalf of the participants and beneficiaries of the Apprenticeship 

and Training Trust. The Apprenticeship and Training Trust constitutes an "employee benefit 

plan" or "plan" within the meaning of 29 U.S.C. §§ 1002(1), (2), (3), and 29 U.S.C. § 1132. The 

plan is administered in Columbus, Ohio.

15. The Apprenticeship and Training Trustees have authorized Plaintiff Carol 

A. Wilson, Administrator of the Ohio Operating Engineers Apprenticeship and Training Fund, to 

bring this claim and to seek the remedy prayed for on their behalf, and on behalf of the 

participants and beneficiaries of the Apprenticeship and Training Trust.

16. Under the provisions of the agreements described in paragraph 6 above, 

Defendant became a party to the Agreements and Declaration of Trust (the "Apprenticeship and 

Training Trust Agreement") that established the Ohio Operating Engineers Apprenticeship and 

Training Fund, and became bound by the terms and conditions set forth therein. The 2000 Hour 

Addendum Agreement dated May 10, 2013, the 2013-2017 Highway Heavy Construction 

Agreement dated November 13, 2013 and the 2013-2017 Non-AGC of Ohio/LRD Members 

Agreement dated July 7, 2014 and the Apprenticeship and Training Trust Agreement contain 

provisions whereby Defendant agreed to make timely payments to the Apprenticeship and 

Training Trustees for each employee covered by the agreements. 

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17. Defendant has failed to make timely payments to the Apprenticeship and 

Training Trustees for each covered employee and has failed to perform the obligations imposed 

by the terms and conditions of the 2000 Hour Addendum Agreement dated May 10, 2013, the 

2013-2017 Highway Heavy Construction Agreement dated November 13, 2013 and the 2013-

2017 Non-AGC of Ohio/LRD Members Agreement dated July 7, 2014 and the Apprenticeship 

and Training Trust Agreement.

18. The Trustees' audit disclosed unpaid contributions for the period October 

1, 2015 to May 1, 2017, owed to the Apprenticeship and Training Trustees. Defendant is 

delinquent in making contributions to the Apprenticeship and Training Trustees in the total 

amount of $1,080.75. 

COUNT IV

19. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 

18 above as fully as if rewritten herein and further state that the Trustees of the Ohio Operating 

Engineers Education and Safety Fund (hereinafter referred to as the "Education and Safety 

Trustees") are the duly appointed, qualified and acting trustees of the trust established as a part of 

the Ohio Operating Engineers Education and Safety Fund by Amended Agreement and 

Declaration of Trust dated May 9, 1992, as amended, (hereinafter referred to as the "Education 

and Safety Trust") between the Labor Relations Division of the Ohio Contractors Association, 

the Associated General Contractors of America, and other employer associations, and the 

International Union of Operating Engineers, Locals Nos. 18, 18A, and 18B, a labor organization 

representing employees in an industry affecting commerce. The Education and Safety Trustees 

bring this action in their fiduciary capacity as trustees for and on behalf of the participants and 

beneficiaries of the Education and Safety Trust. The Education and Safety Trust constitutes an 

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"employee benefit plan" or "plan" within the meaning of 29 U.S.C. §§ 1002(1), (2), (3), and 29 

U.S.C. § 1132. The plan is administered in Columbus, Ohio.

20. The Education and Safety Trustees have authorized Plaintiff Carol A. 

Wilson, Administrator of the Ohio Operating Engineers Education and Safety Fund, to bring this 

claim and to seek the remedy prayed for on their behalf, and on behalf of the participants and 

beneficiaries of the Education and Safety Trust.

21. Under the provisions of the agreements described in paragraph 6 above, 

Defendant became a party to the Agreements and Declaration of Trust (the "Education and 

Safety Trust Agreement") that established the Ohio Operating Engineers Education and Safety 

Fund, and became bound by the terms and conditions set forth therein. The 2000 Hour 

Addendum Agreement dated May 10, 2013, the 2013-2017 Highway Heavy Construction 

Agreement dated November 13, 2013 and the 2013-2017 Non-AGC of Ohio/LRD Members 

Agreement dated July 7, 2014 and the Education and Safety Trust Agreement contain provisions 

whereby Defendant agreed to make timely payments to the Education and Safety Trustees for 

each employee covered by the agreements.

22. Defendant has failed to make timely payments to the Education and Safety 

Trustees for each covered employee and has failed to perform the obligations imposed by the 

terms and conditions of the 2000 Hour Addendum Agreement dated May 10, 2013, the 2013-

2017 Highway Heavy Construction Agreement dated November 13, 2013 and the 2013-2017 

Non-AGC of Ohio/LRD Members Agreement dated July 7, 2014 and the Education and Safety 

Trust Agreement. 

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23. The Trustees' audit disclosed unpaid contributions for the period October

1, 2015 to May 1, 2017, owed to the Education and Safety Trustees. Defendant is delinquent in 

making contributions to the Education and Safety Trustees in the total amount of $129.69. 

COUNT V

24. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 

23 above as fully as if rewritten herein and further state that the Trust Agreements, Defendant's 

collectively bargained agreements, and the rules and regulations adopted by the Health and 

Welfare Trustees on June 13, 1989, by the Pension Trustees on May 26, 1989, by the 

Apprenticeship and Training Trustees on July 12, 1989 and by the Education and Safety Trustees 

on September 25, 1989, specifically provide that the Trustees shall be entitled to recover interest 

of 1.5 percent per month (18 percent per annum) times the unpaid balance of delinquent 

contributions in addition to the unpaid contributions. The assessment of this interest is further 

authorized by 29 U.S.C. § 1132(g)(2)(B), which provides that in any action brought by a 

fiduciary for or on behalf of a plan to collect contributions due the plan, in which a judgment in 

favor of the plan is awarded, the Court must award the plan, in addition to the unpaid 

contributions, interest on the unpaid contributions at the rate set by the plan. 

25. Pursuant to the Trust Agreements, collectively-bargained agreements, 

rules and regulations adopted by the Trustees, and federal law, Defendant owes the Trustees of 

all four funds interest on the unpaid contributions from the audit dated May 25, 2017 in the 

amount of $3,328.45, if paid before July 15, 2017 plus $13.01 per day thereafter that the audit 

findings remain unpaid, and interest on the unaudited delinquencies.

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COUNT VI

26. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 

25 above as fully as if rewritten herein and further state that the Trust Agreements, Defendant's 

collectively bargained agreements, and the rules and regulations adopted by the Trustees provide 

that the Trustees shall be entitled to recover statutory interest at the rate of 18 percent per annum 

on the unpaid contributions in addition to the unpaid contributions. The assessment of this 

statutory interest is further authorized by 29 U.S.C. § 1132(g)(2)(C), which provides that in any 

action brought by the fiduciary for or on behalf of a plan to collect contributions due the plan, in 

which a judgment in favor of the plan is awarded, the court must award the plan, in addition to 

the unpaid contributions and interest under § 1132(g)(2)(B), an amount equal to the greater of 

(i) interest on the unpaid contributions or (ii) statutory interest in an amount specified in the 

employee-benefit plan not in excess of 20 percent of the unpaid contributions.

27. Pursuant to the Trust Agreements, collectively-bargained agreements, 

rules and regulations adopted by the Trustees, and federal law, Defendant owes the Trustees of 

all four funds, in addition to the amounts specified in Counts I through V of this Complaint, an 

amount equal to the greater of (i) interest on the unpaid contributions or (ii) statutory interest on 

the unpaid contributions, calculated at the rate of 18 percent per annum on the unpaid 

contributions from the audit dated May 25, 2017 (up to a "cap" of 20 percent of the unpaid

contributions), which amount is presently $3,328.45, if paid before July 15, 2017, plus $13.01

per day thereafter that the audit findings remain unpaid and interest on the unaudited

contributions.

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COUNT VII

28. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 

27 above as fully as if rewritten herein and further state that the Trust Agreements, Defendant's 

collectively bargained agreements, and the rules and regulations adopted by the Trustees provide 

that the Trustees shall be entitled to recover all costs of collection, including reasonable attorney 

fees, in addition to the delinquent contributions owed by Defendant. Further, 29 U.S.C. 

§ 1132(g)(2)(D) specifically provides that in any action brought by a fiduciary for or on behalf of 

a plan to collect contributions due the plan, in which a judgment in favor of the plan is awarded, 

the court must award the plan, in addition to the unpaid contributions, reasonable attorney fees 

and costs of the action.

29. Pursuant to the Trust Agreements, collectively-bargained agreements, 

rules and regulations adopted by the Trustees, and federal law, Defendant owes the Trustees of 

all four funds reasonable attorneys’ fees as set by the court and court costs.

WHEREFORE, Plaintiff Health and Welfare Trustees demands judgment against 

Defendant on the unpaid contributions from the audit dated May 25, 2017 for the sum of 

$16,517.40, plus whatever sums are found owing pursuant to subsequent audits and monthly 

reports for which contributions have not been paid;

WHEREFORE, Plaintiff Pension Trustees demands judgment against Defendant 

on the unpaid contributions from the audit dated May 25, 2017 for the sum of $8,646.00, plus 

whatever sums are found owing pursuant to subsequent audits and monthly reports for which 

contributions have not been paid; 

WHEREFORE, Plaintiff Apprenticeship and Training Trustees demands 

judgment against Defendant on the unpaid contributions from the audit dated May 25, 2017 for 

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the sum of $1,080.75, plus whatever sums are found owing pursuant to subsequent audits and 

monthly reports for which contributions have not been paid; 

WHEREFORE, Plaintiff Education and Safety Trustees demands judgment 

against the Defendant on the unpaid contributions from the audit dated May 25, 2017 for the sum 

of $129.69, plus whatever sums are found owing pursuant to subsequent audits and monthly 

reports for which contributions have not been paid;

WHEREFORE, all Plaintiffs herein demand judgment against Defendant for 

interest on the unpaid contributions from the audit dated May 25, 2017 in the amount of 

$3,328.45, plus $13.01 per diem for every day after July 15, 2017, in which the audit findings 

and/or monthly contributions remain unpaid, plus whatever sums are found owing pursuant to 

subsequent audits and monthly reports for which contributions have not been paid; and

WHEREFORE, all Plaintiffs herein demand judgment against Defendant for an 

amount equal to the interest on the unpaid contributions from the audit dated May 25, 2017 in the 

amount of $3,328.45, plus $13.01 per diem for every day after July 15, 2017, in which the audit 

findings and/or monthly contributions remain unpaid; plus all costs of collection including 

reasonable attorneys’ fees as fixed by the Court; plus court costs; and such other and further legal 

or equitable relief to which they may be entitled.

Respectfully Submitted,

/s/ Bryan C. Barch

Bryan C. Barch (0075922)

In-House Counsel

Ohio Operating Engineers

1180 Dublin Rd.

Columbus, Ohio 43215

(614) 488-0708

(614) 488-3720 (fax)

bryanbarch@ooefbp.com

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