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COMPLAINT

Case No. 

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Michele R. Stafford, Esq. (SBN 172509)

Edward D. Winchester, Esq. (SBN 271500)

SALTZMAN & JOHNSON LAW CORPORATION

44 Montgomery Street, Suite 2110

San Francisco, California 94104

Telephone: (415) 882-7900

Facsimile: (415) 882-9287

Email: mstafford@sjlawcorp.com

Email: ewinchester@sjlawcorp.com

Attorneys for Plaintiffs, Operating Engineers’ 

Health And Welfare Trust Fund for Northern California, et al.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OPERATING ENGINEERS’ HEALTH AND 

WELFARE TRUST FUND FOR NORTHERN 

CALIFORNIA;

PENSION TRUST FUND FOR OPERATING 

ENGINEERS;

PENSIONED OPERATING ENGINEERS’ 

HEALTH AND WELFARE TRUST FUND;

OPERATING ENGINEERS AND PARTICIPATING 

EMPLOYERS PRE-APPRENTICE, APPRENTICE 

AND JOURNEYMEN AFFIRMATIVE ACTION 

TRAINING FUND;

RUSSELL E. BURNS and RICHARD PIOMBO, 

Trustees;

HEAVY AND HIGHWAY COMMITTEE; and

OPERATING ENGINEERS LOCAL 3 OF THE 

INTERNATIONAL UNION OF OPERATING 

ENGINEERS, AFL-CIO,

Plaintiffs,

v.

JS TAYLOR CONSTRUCTION, INC., a California 

corporation fdba JW TAYLOR CONSTRUCTION; 

JOSHUA THIEL, an individual,

Defendants.

Case No. 

COMPLAINT

Case 3:17-cv-00896-EMC Document 1 Filed 02/22/17 Page 1 of 7
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COMPLAINT

Case No. 

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Parties

1. The Operating Engineers’ Health and Welfare Trust Fund for Northern California (which 

includes the Addiction Recovery Program, Inc.); Pension Trust Fund for Operating Engineers (which 

includes the Pension Plan for the Pension Trust Fund for Operating Engineers, and the Operating 

Engineers Annuity Plan); Pensioned Operating Engineers’ Health and Welfare Trust Fund; and 

Operating Engineers and Participating Employers Pre-apprentice, Apprentice and Journeymen 

Affirmative Action Training Fund (collectively referred to hereinafter as the “Trust Funds”), are 

employee benefit plans as defined in the Employee Retirement Income Security Act of 1974 ("ERISA") 

§ 3(3), 29 U.S.C. § 1002(3). The Trust Funds and their fiduciaries are together referred to herein as 

“ERISA Plaintiffs” or “Plaintiffs.” Russell E. Burns and Richard Piombo are Co-Chairmen of the Joint 

Boards of Trustees of ERISA Plaintiffs with authority to act on behalf of all Trustees.

2. The Heavy and Highway Committee is a Trust established under the Labor Management 

Relations Act ("LMRA"), 302(c)(9), 29 U.S.C. § 186(c)(9).

3. Operating Engineers Local Union No. 3 of the International Union of Operating 

Engineers, AFL-CIO (“Union”) is a labor organization as defined in § 2(5) of the National Labor 

Relations Act ("NLRA"), 29 U.S.C. § 152(5), and is represented by counsel herein for the limited 

purpose of collecting union dues owing as part of the subject contribution claims of Plaintiffs, and not 

for any other cause of action. The Union expressly reserves its rights to pursue any other cause of action 

on its own behalf.

4. JS Taylor Construction, Inc., a California Corporation fdba JW Taylor Construction, and 

Joshua Thiel, an individual, are employers by virtue of ERISA § 3(5), 29 U.S.C. § 1002(5), and NLRA § 

2(2), 29 U.S.C. § 152(2). 

Jurisdiction

5. Jurisdiction exists in this Court over the claims asserted by ERISA Plaintiffs by virtue of 

ERISA § 502, 29 U.S.C. § 1132, in that Plaintiffs seek to enforce the provisions of ERISA and the terms 

of their plans, seek to enjoin the acts and practices which violate ERISA, seek equitable relief to redress 

such violations, and seek all other appropriate relief under ERISA.

6. Jurisdiction exists in this Court over all the claims by virtue of LMRA § 301, 29 U.S.C. § 

Case 3:17-cv-00896-EMC Document 1 Filed 02/22/17 Page 2 of 7
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COMPLAINT

Case No. 

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185, in that Plaintiffs seek to enforce the terms and conditions of a valid Bargaining Agreement. 

7. To the extent jurisdiction over any claim does not exist under ERISA or the LMRA, 

supplemental jurisdiction exists in this Court over such claims by virtue of 29 U.S.C. § 1367 in that they 

arise out of a common nucleus of operative facts that form the basis of the federal claims asserted 

herein, each of which has a substantial ground in federal jurisdiction. 

Venue

8. Venue is conferred upon this Court by ERISA § 502, 29 U.S.C. § 1132. Where an action 

is brought under ERISA § 502 in a district court of the United States, it may be brought at Plaintiffs’ 

discretion, in the district where the plan is administered, where the breach took place, or where a 

defendant resides or may be found, and process may be served in any other district where a defendant 

resides or may be found. ERISA Plaintiffs’ Trust Funds are administered in this district at their principal 

place of business in Alameda, California. Thus, jurisdiction and venue are properly grounded with this 

Court.

9. Venue exists in this Court with respect to the claims under LMRA § 301(a), 29 U.S.C. § 

185, as this Court has jurisdiction over the parties, as the Union maintains its principal place of business 

in this district, its duly authorized officers or agents are engaged in representing employee members in 

this district, and the claims arise in this district. 

Intradistrict Assignment

10. The basis for assignment of this action to this Court’s Oakland Division is that all of the 

events and omissions giving rise to Plaintiffs’ claims occurred in the County of Alameda, where ERISA 

Plaintiffs’ Funds and the Bargained Plans are administered, and where Defendants therefore failed to 

fulfill their statutory and contractual obligations to Plaintiffs.

Bargaining Agreement

11. Defendants entered into the Independent Northern California Construction Agreement 

(the "Independent Agreement") with the Union, which incorporates the Master Agreement ("Bargaining

Agreement") between the Union and the United Contractors, Associated General Contractors of 

California, Inc., Industrial Contractors UMIC, Inc., and Northern Alliance of Engineering Contractors. 

Case 3:17-cv-00896-EMC Document 1 Filed 02/22/17 Page 3 of 7
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COMPLAINT

Case No. 

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Under the Independent Agreement, Defendant Joshua Thiel personally guaranteed all amounts claimed 

herein. 

12. Under the terms of the Bargaining Agreement, and Trust Agreements incorporated 

therein, Defendants are required to pay certain contributions to: the Operating Engineers’ Vacation and 

Holiday Pay Plan; Contract Administration Fund; Job Placement Center and Market Area Committee 

Administration Market Preservation Fund; Industry Stabilization Fund; and Business Development Trust 

Fund (together referred to herein as the “Bargained Plans”). Plaintiffs’ Boards of Trustees have been 

authorized to collect and distribute monies due to the Bargained Plans under the Bargaining Agreement

and Trust Agreements.

13. Under the Bargaining Agreement and Trust Agreements, which are incorporated into the 

Bargaining Agreement and made binding on Defendants, Defendants are required to regularly pay to 

ERISA Plaintiffs, the Bargained Plans, and the Union, certain sums of money, the amounts of which are 

determined by the hours worked by Defendants’ employees. Contributions are due on the fifteenth 

(15th) day of the month following the month in which hours were worked, and are considered 

delinquent if not received by the twenty-fifth (25th) day of that month. Defendants are also required, 

pursuant to the Bargaining and Trust Agreements, to pay liquidated damages in the amount of ten 

percent (10%) for each delinquent contribution, but in the amount of twenty percent (20%) for each 

delinquent contribution which is the subject of litigation. Moreover, the Bargaining and Trust 

Agreements provide that interest accrues on delinquent contributions at the rates reasonably set by the 

Trustees from the date they become delinquent, which is the twenty-sixth (26th) day of the month in 

which payment was due, until paid in full. 

14. The Bargaining and Trust Agreements further require Defendants to maintain time 

records or time cards, and to permit an authorized Trust Fund representative to examine such records of 

Defendants as is necessary to determine whether Defendants have made full payment of all sums owed 

to ERISA Plaintiffs. Should an audit of Defendants’ records reveal Defendants have failed to provide 

full and prompt payment of all sums due to Plaintiffs, Defendants must reimburse Plaintiffs for the 

amounts due, including audit fees, in addition to any other obligations pursuant to the Bargaining and 

Trust Agreements.

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COMPLAINT

Case No. 

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Factual Allegations

15. Defendants have failed to pay contributions due for work performed by their employees 

for the periods: February through April, and July through November 2016; and, January 2017. 

Liquidated damages and interest have been incurred and are owed to Plaintiffs for the unpaid 

contributions for these periods, as well as for prior late paid contributions for the periods: September 

2014; January, May through July, and September through December 2015; and, January and June 2016.

16. Plaintiffs are also entitled to recover any and all other contributions, and all liquidated 

damages and interest on delinquent contributions not specified above, found due on timecards, audit, or 

otherwise, including estimated contributions for any months Defendants fail to report to Plaintiffs,

through the time of Judgment. Plaintiffs reserve the right to conduct an audit to determine whether there 

are any additional amounts due from Defendants. 

FIRST CAUSE OF ACTION

For Payment of Delinquent Contributions, Interest, Liquidated Damages,

Attorneys’ Fees and Costs Against Defendants

17. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 16, above.

18. Defendants have a contractual duty to timely pay the required contributions to Plaintiffs 

and the Bargained Plans, and to timely pay dues to the Union, pursuant to the Bargaining Agreement

and Trust Agreements. Defendants also have a contractual duty under the Bargaining Agreement and 

Trust Agreements to permit an audit of their records to determine whether they are making full and 

prompt payment of all sums required to be paid by them to Plaintiffs, and to pay Plaintiffs all amounts 

found due as a result of an audit, including audit fees. 

19. In addition, Defendants have a statutory duty to timely make the required payments to 

Plaintiffs under ERISA § 515, 29 U.S.C. § 1145, and LMRA § 301(a). 

20. By failing to make the required payments to Plaintiffs, Defendants breached the 

Bargaining and Trust Agreements and are in violation of ERISA § 515, 29 U.S.C. § 1145, and LMRA § 

301(a).

21. Defendants’ failure and refusal to pay the required contributions was at all times, and still 

is, willful. Defendants continue to breach the Bargaining Agreement, and incorporated Trust 

Agreements, by failing to pay all amounts owed as alleged. Said refusal is unjustified and done with 

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COMPLAINT

Case No. 

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knowledge and intent.

22. ERISA Plaintiffs are without an adequate remedy at law and will suffer continuing and 

irreparable injury, loss and damage unless Defendants are ordered specifically to perform all obligations 

required on Defendants’ part to be performed under ERISA, 29 U.S.C. §§ 1101-1381, the LMRA, 29 

U.S.C. §§ 141-197, and the Bargaining and Trust Agreements, and are restrained from continuing to 

refuse to perform as required thereunder. 

23. This Court is authorized to issue injunctive relief based on the traditional standard. As set 

forth above, ERISA Plaintiffs have a strong likelihood of success on the merits. There is the possibility 

that ERISA Plaintiffs’ Trust Funds and their participants will suffer irreparable injuries. The balance of 

hardships and advancement of public interest favor ERISA Plaintiffs.

24. This Complaint does not in any manner relate to statutory withdrawal liability that may or 

may not be assessed against Defendants. ERISA Plaintiffs expressly reserve the right to pursue any such 

withdrawal liability claims against Defendants as provided by ERISA Plaintiffs’ Plan Documents, Trust 

Agreements, and the law.

Prayer

WHEREFORE, Plaintiffs pray as follows:

1. For a judgment against Defendants as follows: 

(a) Any unpaid contributions, due at time of Judgment, including those specified 

above as well as any other contributions determined as due by audit, timecards, or otherwise, including 

estimated contributions for any months Defendants fail to report to Plaintiffs, pursuant to ERISA § 

502(g)(2)(A), 29 U.S.C. § 1132(g)(2)(A);

i. To ERISA Plaintiffs and the Bargained Plans, in accordance with ERISA 

§ 502(g)(2)(A), 29 U.S.C. § 1132(g)(2)(A) and the Bargaining Agreement; 

ii. To the Union in accordance with the Bargaining Agreement.

(b) Liquidated damages on all late-paid and unpaid contributions in an amount 

provided for under the Bargaining and Trust Agreements, and with respect to ERISA Plaintiffs, ERISA 

§ 502(g)(2)(c), 29 U.S.C. § 1132(g)(2)(c).

(c) Interest on all late-paid and unpaid contributions at the rates set in accordance 

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COMPLAINT

Case No. 

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with the Bargaining Agreement, the Trust Agreements, and ERISA § 502(g)(2)(B), 29 U.S.C. § 

1132(g)(2)(B).

2. Plaintiffs' reasonable attorneys' fees and costs of this action, including any audit fees, in 

accordance with ERISA § 502(g)(2)(D) and (E), 29 U.S.C. § 1132(g)(2)(D) and (E); and in accordance 

with the Bargaining Agreement for all Bargained Plans; and with LMRA § 301, 29 U.S.C. § 185, for all 

Plaintiffs. 

3. For an order,

(a) requiring that Defendants comply with their obligations to Plaintiffs under the 

terms of the Bargaining Agreement and the Trust Agreements;

(b) enjoining Defendants from violating the terms of those documents and of ERISA; 

and,

(c) enjoining Defendants from disposing of any assets until said terms have been 

complied with, and from continuation or operation of Defendants’ business until said terms have been 

complied with.

4. That the Court retain jurisdiction of this case pending compliance with its orders.

5. For such other and further relief as the Court may deem just and proper.

DATED: February 22, 2017

By:

SALTZMAN & JOHNSON LAW CORPORATION

/S/

Edward D. Winchester

Attorneys for Operating Engineers’ Health And 

Welfare Trust Fund for Northern California, et al.

Case 3:17-cv-00896-EMC Document 1 Filed 02/22/17 Page 7 of 7