UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

DIRECTORS OF THE OHIO :

CONFERENCE OF PLASTERERS :

AND CEMENT MASONS COMBINED :

FUNDS, INC. : Case No. 1:18-cv-188

33 Fitch Boulevard :

Austintown, OH 44515 :

:

Plaintiffs, :

:

v. :

:

S & S PLASTERING LLC :

3224 McGill Road :

Cincinnati, OH 45251-3207 :

:

Defendant. :

:

:

SERVE ON: :

:

Steven Ray Doyle, Statutory Agent :

3224 McGill Road :

Cincinnati, OH 45251-3207 :

:

COMPLAINT

1. Plaintiffs, Directors of the Ohio Conference of Plasterers and Cement Masons 

Combined Funds, Inc. are managers of the entity responsible for collections on behalf of various 

employee benefit funds. Defendant, S & S Plastering LLC is an employer that is obligated to make 

contributions to the benefit funds so that its employee(s) may participate and receive the employee 

benefits provided by the benefit funds. S & S Plastering LLC is required to make contributions to 

the benefit funds at an hourly rate determined by contract, and to pay contributions on behalf of 

each hour worked by its employees performing work covered by such contract. When an employer

like S & S Plastering LLC fails to make contributions to the benefit funds as required, employees

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and their dependents’ benefits are placed in jeopardy. The benefit funds have a fiduciary duty to 

attempt to collect all amounts due, and therefore must act accordingly. S & S Plastering LLC has 

failed to make contributions to the benefit funds as contractually required, and thus this suit is 

levied. 

JURISDICTION AND VENUE

2. This action arises under the Employee Retirement Income Security Act of 1974 

(“ERISA”), 29 U.S.C. § 1001, et seq. (2014). Jurisdiction is conferred upon this Court pursuant 

to ERISA §§ 502 and 515, 29 U.S.C. §§ 1132 and 1145, as this is a suit against an employer for 

failing to make required contributions to an employee benefit fund. Jurisdiction is also conferred 

upon this Court pursuant to Section 301(a) of the Labor Management Relations Act of 1947 

(“LMRA”), 29 U.S.C. §185(a), as this suit alleges violations of a collective bargaining agreement 

involving an employer and labor organization.

3. Venue is appropriate in this Court under Section 502(e)(2) of ERISA, 29 U.S.C. §

1132(e)(2) because the cause of action described herein is occurring within the jurisdiction of the 

U.S. District Court for the Southern District of Ohio, Western Division at Cincinnati. 

PARTIES

4. Plaintiffs, Directors of the Ohio Conference of Plasterers and Cement Masons 

Combined Funds, Inc. (“Plaintiffs” or “Combined Funds”) manage the Ohio nonprofit corporation, 

established by a number of employee benefit plans associated with local unions of the Operative 

Plasterers’ & Cement Masons’ International Association of the United States & Canada, AFLCIO, for the purposes of monitoring and collecting contributions, deductions, interest, liquidated 

damages, assessments, penalties, costs, and fees owed to certain employee benefit plans. 

Plaintiffs’ principal place of business is located at 33 Fitch Boulevard, Austintown, Ohio 44515.

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5. Defendant, S & S Plastering LLC (“Defendant” or “S & S”), is an Ohio limited 

liability company with its principal place of business at 3224 McGill Road, Cincinnati, Ohio 

45251. At all material times herein, Defendant was an employer as defined by 29 U.S.C. §§ 152(2) 

and 1002(5). Defendant is engaged in interstate commerce and affecting commerce as defined in 

29 U.S.C. §§ 1002(11) and 1002(12).

RELEVANT FACTS

6. The Ohio Conference of Plasterers and Cement Masons Health and Welfare Fund 

(“Health Fund”) was established by an Agreement and Declaration of Trust (“Health Fund Trust 

Agreement”), for the purpose of providing health insurance to eligible employees. (Exhibit A, 

Health Fund Trust Agreement, at p. 7). The Health Fund is an “employee welfare benefit plan” as 

defined by ERISA §§ 3(1) and 3(3); 29 U.S.C. § 1002(1). The Health Fund is a multi-employer 

plan as defined by ERISA §§ 3(37) and 4001(a)(3); 29 U.S.C § 1002(37).

7. The Health Fund is administered by a joint Board of Trustees composed of an equal 

number of employee and employer representatives, as required by Section 302(c)(5) of the LMRA, 

29 U.S.C § 186(c)(5). The Board of Trustees is the “plan sponsor” of the Health Fund as defined 

by 29 U.S.C. § 1002(16)(B)(iii).

8. The Board of Trustees is vested with the authority to collect employer contributions 

due to the Health Fund. (Exhibit A, at p. 15). Additionally, the Board of Trustees is vested with 

the authority to designate persons other than Trustees to carry out fiduciary responsibilities to the 

extent permitted by law. (Exhibit A, at p. 16). The Board of Trustees delegated its authority to 

collect contributions due to the Health Fund to Plaintiffs.

9. The Ohio Local No. 1 Operative Plasterers’ and Cement Masons’ Pension Fund

(“Pension Fund”) was established by an Agreement and Declaration of Trust (“Pension Fund Trust

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Agreement”), for the sole purpose of providing pension benefits to certain eligible employees and 

their beneficiaries. (Exhibit B, Pension Fund Trust Agreement, at p. 4). The Pension Fund is an 

“employee pension benefit plan” as defined by ERISA §§ 3(2) and 3(3); 29 U.S.C. § 1002(2). The 

Pension Fund is a multi-employer plan as defined by ERISA §§ 3(37) and 4001(a)(3); 29 U.S.C § 

1002(37).

10. The Pension Fund is administered by a joint Board of Trustees composed of an 

equal number of employee and employer representatives, as required by Section 302(c)(5) of the 

LMRA, 29 U.S.C § 186(c)(5). The Board of Trustees is the “plan sponsor” of the Pension Fund

as defined by 29 U.S.C. § 1002(16)(B)(iii).

11. The Board of Trustees is vested with the authority to collect employer contributions 

due to the Pension Fund. (Exhibit B, at p. 4). Additionally, the Board of Trustees is vested with 

the authority to designate persons other than Trustees to carry out fiduciary responsibilities to the 

extent permitted by law. (Exhibit B, at p. 17). The Board of Trustees delegated its authority to 

collect contributions due to the Pension Fund to Plaintiffs.

12. Plaintiffs adopted a Contribution, Collection and Overpayment Policy (“Collection 

Policy”) to ensure employers remit benefit contributions in a timely and orderly manner. (Exhibit 

C, Collection Policy).

13. On November 2, 2015, Defendant by and through its duly authorized agent, 

executed a Collective Bargaining Agreement (“CBA”), thereby becoming a party to the terms of 

the CBA. (Exhibit D, CBA).

14. By executing the CBA, Defendant became obligated to submit timely reports of the 

hours worked by covered employees and to make certain contributions to the Health Fund and

Pension Fund, along with contributions to other employee benefit funds. (Exhibit D, at p. 3).

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15. Despite having a contractual obligation to submit monthly reports of hours worked 

by covered employees and to remit contribution payments, Defendant has failed to report the 

number of hours worked by covered employees and has similarly failed to remit contribution 

payments for the period of February 2016 through present day.

16. Despite repeated demands and a contractual obligation to do so, Defendant has 

failed to submit to a payroll audit.

17. Because Defendant has failed to submit monthly reports of hours worked and 

refuses to submit to a payroll audit, Plaintiffs are unable to ascertain the dollar amount of liability 

Defendant owes to Plaintiffs.

18. As a result of Defendant’s conduct, Defendant is liable to Plaintiffs for delinquent 

contributions, liquidated damages and accruing interest in an amount yet to be determined pursuant 

to ERISA § 502(g)(2), 29 U.S.C. § 1132(g)(2), and LMRA § 301, 29 U.S.C. § 185.

COUNT I

ERISA § 515, 29 U.S.C. § 1145—Failure to Remit Contributions/Reports

19. Plaintiffs reallege each averment set forth above as if fully rewritten herein.

20. At all material times herein, Defendant was a party to and agreed to abide by the 

terms of the CBA. (Exhibit D, CBA, at p. 8). Pursuant to the CBA, Defendant is obligated to

make certain contributions to the Health Fund and Pension Fund, along with contributions to other

employee benefit funds by the fifteenth day of the month following the month in which the work 

was performed. (Exhibit D, at p. 4).

21. The CBA incorporates by reference the Health Fund Trust Agreement and Pension 

Fund Trust Agreement (collectively “Trust Agreements”). (Exhibit D, at p. 4). The Trust 

Agreements require that Defendant make certain benefit contributions as required by the CBA. 

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(Exhibit A, Health Fund Trust Agreement, at p. 23; Exhibit B, Pension Fund Trust Agreement, at 

p. 4).

22. The Trust Agreements grant the Trustees the authority to create and implement 

collection policies and this authority was properly delegated to Plaintiffs. The Collection Policy

adopted by Plaintiffs requires that Defendant submit to payroll audits when requested and make 

contribution payments by the fifteenth day of the month following the month in which the work 

was performed. (Exhibit C, Collection Policy, at p. 2).

23. Despite repeated demands to do so, Defendant has failed to submit to a payroll audit

and is therefore in breach of the CBA, Trust Agreements and Collection Policy.

24. Defendant has failed to timely report hours worked by covered employees for the 

period of February 2016 through present day as required by the CBA, Trust Agreements and 

Collection Policy.

25. Defendant has failed, or otherwise neglected to remit contribution payments for the 

period of February 2016 through present day as required by the CBA, Trust Agreements and 

Collection Policy.

26. Defendant’s actions are in violation of ERISA § 515, 29 U.S.C. § 1145, and 

therefore Defendant is liable for delinquent contributions, liquidated damages, interest and 

attorney’s fees pursuant to ERISA § 502(g)(2), 29 U.S.C. § 1132(g)(2).

COUNT II

LMRA § 301, 29 U.S.C. § 185—Breach of Contract & Failure to Remit Contributions/Reports

27. Plaintiffs reallege each averment set forth above as if fully rewritten herein.

28. At all material times herein, Defendant was a party to and agreed to abide by the 

terms of the CBA. (Exhibit D, CBA, at p. 8). Pursuant to the CBA, Defendant is obligated to 

make certain contributions to the Health Fund and Pension Fund, along with contributions to other 

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employee benefit funds by the fifteenth day of the month following the month in which the work 

was performed. (Exhibit D, at p. 4).

29. The CBA incorporates by reference the Trust Agreements. (Exhibit D, at p. 4). 

The Trust Agreements require that Defendant make certain benefit contributions as required by 

the CBA. (Exhibit A, Health Fund Trust Agreement, at p. 23; Exhibit B, Pension Fund Trust 

Agreement, at p. 4).

30. The Trust Agreements grant the Trustees the authority to create and implement 

collection policies and this authority was properly delegated to Plaintiffs. The Collection Policy 

adopted by Plaintiffs requires that Defendant submit to payroll audits when requested and make 

contribution payments by the fifteenth day of the month following the month in which the work 

was performed. (Exhibit C, Collection Policy, at p. 2).

31. Despite repeated demands to do so, Defendant has failed to submit to a payroll audit 

and is therefore in breach of the CBA, Trust Agreements and Collection Policy.

32. Defendant has failed to timely report hours worked by covered employees for the 

period of February 2016 through present day as required by the CBA, Trust Agreements and 

Collection Policy.

33. Defendant has failed, or otherwise neglected to remit contribution payments for the 

period of February 2016 through present day as required by the CBA, Trust Agreements and 

Collection Policy.

34. Defendant’s conduct is in breach of the CBA, Trust Agreements and Collection 

Policy, and therefore Plaintiffs are entitled to relief pursuant to LMRA § 301, 29 U.S.C. § 185.

COUNT III

ERISA § 515, 29 U.S.C. § 1145—Failure to Pay Liquidated Damages

35. Plaintiffs reallege each averment set forth above as if fully rewritten herein.

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36. At all material times herein, Defendant was a party to and agreed to abide by the 

terms of the CBA. (Exhibit D, CBA, at p. 8). The CBA provides that liquidated damages, accessed 

at ten-percent, are automatically incurred on delinquent amounts not paid within twenty-five days 

after the month in which the work was performed. (Exhibit D, at p. 4).

37. The CBA incorporates by reference the Trust Agreements. (Exhibit D, at p. 4). 

The Trust Agreements provide that all delinquent contribution payments automatically incur 

liquidated damages. (Exhibit A, Health Fund Trust Agreement, at p. 23; Exhibit B, Pension Fund 

Trust Agreement, at pp. 4-5).

38. The Trust Agreements grant the Trustees with the authority to create and implement 

collection policies and this authority was properly delegated to Plaintiffs. The Collection Policy 

adopted by Plaintiffs provides that delinquent contributions are accessed liquidated damages at 

ten-percent. (Exhibit C, Collection Policy, at p. 2).

39. Defendant has failed to remit timely contribution payments for the period of 

February 2016 through present day, thereby rendering such contributions delinquent. As such, 

Plaintiffs are entitled to liquidated damages accessed at ten-percent from their respective due dates

for the months of February 2016 until present day.

40. Defendant’s actions violate ERISA § 515, 29 U.S.C. § 1145, and therefore Plaintiffs

are entitled to liquidated damages pursuant to ERISA § 502(g)(2)(C)(ii), 29 U.S.C. § 

1132(g)(2)(C)(ii).

COUNT IV

LMRA § 301, 29 U.S.C. § 185—Breach of Contract & Failure to Pay Liquidated Damages

41. Plaintiffs reallege each averment set forth as if fully rewritten herein.

42. At all material times herein, Defendant was a party to and agreed to abide by the 

terms of the CBA. (Exhibit D, CBA, at p. 8). The CBA provides that liquidated damages, accessed 

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at ten-percent, are automatically incurred on delinquent amounts not paid within twenty-five days 

after the month in which the work was performed. (Exhibit D, at p. 4).

43. The CBA incorporates by reference the Trust Agreements. (Exhibit D, at p. 4). 

The Trust Agreements provide that all delinquent contribution payments automatically incur 

liquidated damages. (Exhibit A, Health Fund Trust Agreement, at p. 23; Exhibit B, Pension Fund 

Trust Agreement, at pp. 4-5).

44. The Trust Agreements grant the Trustees with the authority to create and implement 

collection policies and this authority was properly delegated to Plaintiffs. The Collection Policy 

adopted by Plaintiffs provides that delinquent contributions are accessed liquidated damages at 

ten-percent. (Exhibit C, Collection Policy, at p. 3).

45. Defendant has failed to remit timely contribution payments for the period of 

February 2016 through present day, thereby rendering such contributions delinquent. As such, 

Plaintiffs are entitled to liquidated damages accessed at ten-percent from their respective due dates

for the months of February 2016 through present day.

46. Defendant’s actions are in breach of the CBA, Trust Agreements and Collection Policy, 

and therefore Plaintiffs are entitled to liquidated damages pursuant to LMRA § 301, 29 U.S.C. § 

185.

COUNT V

ERISA § 502(g)(2)(E), 29 U.S.C. § 1132(G)(2)(E)—Order Compelling Payroll Audit

47. Plaintiffs reallege each averment set forth as if fully rewritten herein.

48. At all material times herein, Defendant was a party to and agreed to abide by the 

terms of the CBA. (Exhibit D, CBA, at p. 8).

49. The CBA incorporates the Trust Agreements. (Exhibit D, at p. 3). Pursuant to the 

Trust Agreements, the Trustees have the authority to compel employers to submit to payroll audits. 

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(Exhibit A, Health Fund Trust Agreement, at p. 25; Exhibit B, Pension Fund Trust Agreement, at

p. 5).

50. Pursuant to the Collection Policy, Defendant is required to submit to a payroll audit

when requested. (Exhibit C, Collection Policy, at p. 2).

51. Despite repeated demands to do so, Defendant has failed to submit to a payroll audit 

as contractually obligated by the CBA, Trust Agreements and Collection Policy.

52. Plaintiffs have no way of verifying, absent an audit, the number of hours worked 

by covered employees. Therefore, Plaintiffs have no way of ascertaining the amount owed in 

delinquent contributions, liquidated damages and interest.

53. Defendant’s refusal to submit to a payroll audit is in violation of the CBA, Trust 

Agreements and Collection Policy, and therefore Plaintiffs are entitled to an order compelling

Defendant to submit to a payroll audit pursuant to ERISA § 502(g)(2)(E), 29 U.S.C. § 

1132(g)(2)(E). 

WHEREFORE, Plaintiffs demand the following relief:

A. Judgment in favor of Plaintiffs and against Defendant for unpaid and delinquent 

contributions owed by Defendant for the period of February 2016 through present day, in 

an amount to be determined;

B. Judgment in favor of Plaintiffs and against Defendant for accumulated interest and 

liquidated damages on the delinquent contributions from their respective due dates for the 

months of February 2016 through present day, plus any additional interest accrued at the 

time of an entry of judgment, in an amount to be determined;

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C. An Order compelling Defendant to submit all delinquent reports of hours worked 

for the period of February 2016 through present day, and Judgment in favor of Plaintiffs 

and against Defendant for the amounts shown due and owing in such reports; 

D. Alternatively, if Defendant refuses to provide said reports, Plaintiffs request an 

Order compelling Defendant to submit to a payroll audit of its books and records to 

determine the amounts owed to Plaintiffs for delinquent contributions, liquidated damages, 

and interest in an amount to be determined;

E. That this Court retain jurisdiction over this cause pending compliance with all 

Orders;

F. An award of reasonable attorney fees incurred in connection with this action as 

provided for by the Trust Agreements and 29 U.S.C. §1132(g)(2)(D); and

G. Any other legal or equitable relief which the Court deems just as provided for under 

ERISA 502(g)(2)(E), 29 U.S.C. §1132 (g)(2)(E), pursuant to 502(a)(3), 29 U.S.C. 

§1132(a)(3).

Respectfully submitted,

s/ Jennie G. Arnold

Jennie G. Arnold (0084697)

Tenechia D. Lockhart (0093648)

LEDBETTER PARISI LLC

5078 Wooster Road, Suite 400

Cincinnati, Ohio 45226

937-619-0900 

937-619-0999 (fax)

jarnold@fringebenefitlaw.com

tlockhart@fringebenefitlaw.com

Counsel for Plaintiffs

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