Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 451, 456 (1957). Moreover, state law may be
resorted to in order to best carry out the federal policy. /d. at457. Here, the court considers Illinois
statutory provisions concerning Radice’s liability for Titan’s obligations.

Pursuant to 805 ILCS 5/3.20, “[a]l! 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.” In Richmond Wholesale Meat Co. v. Hughes, 625 F. Supp. 584 (N.D.
Il. 1985), the court found that this principle applies to persons who have an investment in an
organization and who actively participate in the policy and operation of the decisions of the
organization. /d. at 589; see also United States Fidelity & Guar. Corp. v. Putzy, 613 F. Supp. 594,
597-602 (N.D. Ill. 1985). More recently, a court found a defendant acting as “president” of a
corporation liable on a lease where the corporation never existed. /nland Prop. Mgmt., Inc. v.
McLallen, No. 88 C 8191, 1990 WL 43510, at *6-7 (N.D. Ill. Apr. 4, 1990). There are also a number
of early cases that establish at common law that a person in Radice’s circumstances is liable for
the debts of a business that such a person falsely represented was incorporated. See Kent v.
George M. Clark & Co., 181 Ill. 237, 54 N.E. 967, 969 (lil. Oct. 16, 1899) (parties contracting in
name of pretended corporation liable for contractual obligations); Hipp v. Muehleisen, 88 Ill. App.
55 (Ill.App. 1st Dist. Mar. 13, 1900) (physicians who pretended to be officers of a corporation were
personally liable for accrued rent); McCormick v. Seeberger, 73 Ill. App. 87, 95-96, 106 (Ill App. 1st
Dist. Jan. 6, 1898) (directors of so-called national bank individually liable for bank's failure to pay
rent).

Under the facts of this case, this court finds that Radice is liable for Titan’s unpaid
obligations based on his active participation in the business and financial affairs of Titan under
Illinois statutory and common law. From the very first meeting when the group of individuals came
together to establish Titan until the period in which Titan failed to make the required benefit fund
contributions, Radice exercised authority on behalf of Titan, an unincorporated business entity.

13


bargaining agreement with the Union.’ (Pl.’s Am. Compl. {| 9; Ans. {| 9.) The CBA incorporates
by reference certain substantive provisions of collective bargaining agreements negotiated between
the Union and various employer associations. (Pl.’s Am. Compl. {| 10; Ans. | 10.) West testified
that he and Martin “may have” provided an address for Titan located on State Street in Chicago.
West also operated other businesses at this State Street address in Chicago. (West Dep., at 18,
30, 40.)

On July 21, 1999, Radice and Marzullo went to the Union's offices to obtain information
regarding the hourly payments to be made for health and welfare, pension, annuity, and other
related issues. (Radice Dep., at 48-49, 53-59.) While there, Radice submitted a personal check
in the amount of $1,000.00 to a representative of Bricklayers Local 21, an affiliate of the Union, to
cover the first part of the initiation fee payments for five of Titan's employees. (/d., at 48-49, 95-
96.) While Titan operated under the CBA, Radice instructed a payroll processing company of the
amounts each employee should be paid.’ (/d., at 44-46.) Marzullo obtained and prepared the
forms for reporting hourly work by employees represented by the Union and paying fringe benefit
fund contributions on their work, and Radice signed them. (/d., at 251-53.) According to Radice,
none of the payments for fringe benefit fund contributions were made because there was “[nlo
money.” (/d., at 253.)

On numerous occasions when Titan needed funds to satisfy various financial obligations
(other than its obligations to the Union), Radice informed West or Marzullo, who would then provide
Radice with the necessary funds to cover the obligations. (/d., at 60-61.) On at least 12 other

occasions, Radice satisfied Titan's financial obligations from his own account, or made deposits

4 The record currently before the court does not include a copy of the CBA.
Defendant does not dispute that a Titan representative signed the CBA, and the JAB’s proceedings
note that the CBA was signed on May 28, 1999 by Marzullo. (SAB Summary of 6/8/2000 Meeting,
Ex. D to Pl.’s SJ Memo.)

5 It is unclear from the record how long Titan operated under the CBA.

4


that Radice and Marzullo proposed were due them, stated that Titan would prepare a final net
check reflecting payroll taxes, Social Security withholding, and advances previously received, and
advised that the employees would receive a Form W-2 for year 2001. (11/01/01 Employees
Letter.) The letter appeared on Radice’s personal letterhead and featured Radice’s signature
without any particular title or position designation. (11/01/01 Employees Letter; Radice Dep., at
171-175.) Despite the letter’s explicit statement that employees would “receive a Form W-2 for
year 2001,” and the undisputed fact that 2001 W-2 forms could only have been issued to Titan
employees who had received payment by December 31 of that year, Radice stated that at the time
he sent the letter, he did not know whether there was money available to make the employee
payments promised in the letter and only “hoped that the money would be there.” (11/01/01
Employees Letter; Radice Dep., at 179-183.)

Atsome unspecified date, the Union charged Radice with improper direct dealing because
of the letters he sent in November 2001.° Radice hired a lawyer selected by West from R.T.
Blankenship & Associates to represent him in the unfair labor practice proceedings brought against
him. Defendant Marzullo provided the retainer payment to the lawyer. (Radice Dep., at 183-184,
189-190.) On December 9, 2001, Jonathan Sturgill, a lawyer from R.T. Blankenship & Associates,
faxed a letter to Radice and West, explaining that the NLRB planned to issue a complaint unless
Titan rescinded the November 2001 letter, in which case the Union would withdraw the charge
against Radice. (Letter from Sturgill to Radice and West of 12/09/01, Ex. J to Plaintiff's S.J.
Memo.) On January 14, 2002, Radice sent a second letter on behalf of Titan to all employees from
1999 and 2000, stating that “Titan Erectors formally rescind[s] . . . the previous November 1, 2001

correspondence sent. . . by Gerard V. Radice” and indicating that “any and all responses received

® In its submissions, Plaintiff has not included copies of any of the Union's
communications regarding Defendant's alleged direct dealing with former Titan employees.
Defendant does not dispute that Plaintiff initiated unfair labor practice proceedings on these
grounds. (Def.’s 56.1 Resp. q 36.)


On December 1, 1999, West appeared at the JAB hearing and made arrangements with
the Union to keep Titan in business and agreed to personally guarantee Titan’s obligations as a
condition of the JAB’s agreement to permit Titan to continue operations. (Letter from Bennett to
West of 12/07/99, Ex. B to Pl.’s SJ Memo.) The letter addressed to and acknowledged by West
states in relevant part:

This letter will confirm the arrangements made at the meeting of the Joint Arbitration

Board on December 1. You agreed that as a condition of the JAB not ordering your

company to cease all operations until full payments are made, you would provide

a personal guarantee for the obligations owed by Titan Erectors under the collective

bargaining agreement.

(!d.) Defendant Radice admits this allegation but asserts that West's decision to personally
guarantee Titan’s obligations is immaterial to him. (Def.’s 56.1 Resp. {If 25-26.)

The record does not reflect any further correspondence regarding arbitration proceedings
until May 24, 2000. On that date, the IDC sent a letter notifying Titan that a JAB hearing would be
held on June 8 to reconsider the Union’s November grievances. (Letter from Marinopoulos to West
of 05/24/00, Ex. C to Plaintiff's SJ Memo.) On June 8, 2000, the JAB rendered its decision on the
charges and found that Titan and West were in violation of their obligations and were required to
pay all wages, benefit fund contributions, and other obligations due from May 1999 to date. (JAB
Summary of 6/8/00 Meeting, Ex. D to Plaintiff's SJ Memo.) The JAB also ordered Titan to conduct
a wage and benefit audit from May 1999 to date which would result in a further award based on
those results. (/d.) The Union enclosed the JAB award notification in a July 14, 2000 letter it sent
to Titan and West at the State Street address. (Letter from Marinopoulos to West of 07/14/00, Ex.
E to Plaintiff's SJ Memo.) Radice does not contest Plaintiff's statements regarding the JAB award
rendered on June 8, nor does he rebut the information set forth in the letters sent to Titan and West
on May 24 or July 14. Radice reiterates, however, that West's personal guarantee of Titan’s
obligations is immaterial to his own liability, and further points out that none of these notices were
addressed specifically to his attention. (Def.’s 56.1 Resp. {J 27-29.)

6


from his persona! account into the Titan account, totaling some $30,000. (/d., at 83-103, 219-229,
239-241, 256.) While Radice covered various expenses of Titan from his own account, he never
made such payments with respect to the benefit fund contributions because he “never thought of
it.” (/d., at 253-254.) On at least three occasions, Radice wrote checks to himself on Titan's
account, totaling $4,300.00, without the approval of any other members of the venture. (/d., at 215-
218, 229-233.) When asked about these checks, Mr. Radice testified that he believed he was the
only one within the Titan organization who had the authority to approve the payments. (/d., at 218.)
Although he made payments on behalf of Titan and made payments to himself from Titan's
account, Radice did not think to make payments concerning the wages to employees and
contributions to the benefit funds providing medical insurance and retirement benefits to the
employees, even though he knew that Titan was responsible for and had not satisfied such
obligations. (/d., at 255-258.)

On November 12, 1999, the Union sent a letter to Titan at the State Street address provided
in May 1999, stating a grievance involving alleged failures to comply with the CBA. (11/12/99
Letter from Pete Marinopoulos to Titan, Ex. A to Pl.’s SJ Memo, at 1.) The November 12 letter
notified Titan that a hearing would be held on December 1 regarding that grievance before the JAB.
(/d.) Titan acknowledged receipt of the November 12 letter on November 15, 1999. (Certified Mail
Receipt of 11/15/99 signed by Marzullo, Ex. A to Pl.’s SJ Memo, at 2.) It is undisputed that Titan
representatives provided the Union with the State Street address when the CBA was signed.
(Declaration of Angelina Mieliulis, Administrative Manager of the Union, Ex. to Pl.’s SJ Memo $4.)
Defendant Radice notes, however, that the letter was addressed to Titan, and not to his attention.®
(Defendant's Response to Plaintiff's Statement of Uncontested Facts | 24 (hereinafter “Def.'s 56.1

Resp.”).)

8 There is no indication on the record that Radice ever notified the Union that
correspondence should be sent to his attention.

5


Plaintiff's 56.1 Statement.) In keeping with its prior mailings, the Union used this address because
it had been provided by representatives of Titan when they signed the CBA. (Mieliulis Decl. ¥ 4.)
When the Union did not receive an acknowledgment of receipt, the Union arranged for the JAB
award letter to be delivered by hand to West's residence in Lake Forest on January 21, 2002. (Ex.
F to Plaintiff's 56.1 Statement; Letter from Marinopoulos to West of 12/14/00, Ex. G to Plaintiff's
56.1 Statement; Letter from Philip P. Ducar, Special Process Server, to West of 01/25/01, Ex. H
to Plaintiff's 56.1 Statement.) Defendant Radice claims he has no knowledge of the award letter
being mailed to the State Street address or hand delivered to West's residence and notes further
that his name was not on any of the letters. (Def.’s 56.1 Resp. ¥[ 31.)

To date, the Defendants have not complied with the JAB award. (PI.’s Am. Compl. {| 17.)
Furthermore, neither Titan nor West ever filed a lawsuit to vacate the award. None of the
Defendants made any formal challenge to the JAB decisions until May 9, 2001, when Titan, West,
and Marzullo filed their Answer to the Complaint to enforce the arbitration award. (Mieliulis Decl.
415.) Although Radice acknowledges that no lawsuit was filed to vacate the award, he asserts that
a “motion” to vacate the award was filed before the JAB in November 2001, which resulted in a
subsequent audit in which the auditors calculated the benefit delinquencies, excluding the summary
of wages, to total $35,830.46. (Letter from Eisen, Fey & Associates to IDC of 01/17/02 (“Eisen,
Fey Letter”), Ex. B to Def.’s 56.1 Resp.) Moreover, he maintains that the September and October
letters objected to the amount set forth in the JAB award. (Radice Letter; Marzullo Letter.)®

On or around November 1, 2001, Defendant Radice and Marzullo prepared a letter that
Radice then sent on behalf of Titan to former employees with outstanding wage claims. (Letter
from Radice to Employees of Titan of 11/01/01 (“11/01/01 Employees Letter”), Ex. | to Plaintiff's

SJ Memo.; Radice Dep., at 171-175.) The letter asked the former employees to verify amounts

8 Paragraph 33 of Defendant’s 56.1 Response cites to Exhibit A-2 as a letter
contesting the JAB award, but no such exhibit is attached to the 56.1 Response before the court.

8


Minute Ord

ler Form (0697)

United States District Court, Northern District of Illinois

Name of Assigned Judge Rebe . Pallmeyer Sitting Judge if Other
or Magistrate Judge + than Assigned Judge
CASE NUMBER 01C716 DATE 8/20/2002
CASE Illinois District Council No. 1, et vs. Donald W. West, et al
TITLE
{In the fotlowing box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION ‘ol the motion being presented.]
Q :
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) 0 Brief in support of motion due
(3) oD Answer brief to motion due. . Reply to answer brief due.
(4) im) Ruling/Hearing on set for at :
(5) Zz Status hearing set for 9/6/2002 at 9:00 A.M..
(6) Q Pretrial conference[held/continued to] [set for/re-set for] on set for at :
a” oa Trial[set for/re-set for] on at
(8) oO {Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) ClLocal Rule 41.1 CFRCP4I(a(1) CO FRCPAI(a)(2).
ce _| [Other docket entry] Enter Memorandum Opinion And Order. Plaintiff's motion for summary
judgment against Defendant Radice (Doc. No. 69-1) is granted. Judgment is entered in favor of Plaintiff
and against Defendant Radice in the amount awarded by the JAB.
dal) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court Document
No notices required > Number
10 notices required. number of notices
S| Notices mailed by judge’s staff,

Notified counsel by telephone

Docketing to mail notices.

Mail AO 450 form.

ping

Copy to judge/magistrate judge.

date mailed notice
courtroom

deputy’s
initials

ETV

Date/time received in
central Clerk’s Office

sailing depeay intias

va



1999). When making this determination, the court must examine the evidence and draw all
reasonable inferences in the light most favorable to the nonmoving party. Alexander, 263 F.3d at
680.
B. Enforcement of JAB Award Against Titan

It is well settled in the Seventh Circuit that the “failure to challenge an arbitration award
within the applicable limitations period renders the award final.” See International Union of
Operating Eng’rs, Local 150, AFL-CIO v. Centor Contractors, Inc., 831 F.2d 1309, 1311 (7th Cir.
1987). Therefore, “challenges in the nature of grounds to vacate the award may not be asserted
as defenses to a subsequent enforcement action.” /d. The prescribed time period is intended to
“enhance the speed and effectiveness of arbitration, to provide fair review of the arbitrator's
decision, and to preclude the losing party from dragging out proceedings in order to dilute the
integrity of the arbitration award.” Teamsters Local No. 579 v. B & M Transit, Inc., 882 F.2d 274,
277 (7th Cir. 1989). Plaintiff brought this action to enforce its arbitration award pursuant to § 301
of the LMRA. Because the LMRA provides no statute of limitations for actions challenging
arbitration awards, timeliness is to be determined by reference to the appropriate state statute of
limitations. Plumbers’ Pension Fund, Local 130 v. Domas Mech. Contractors, Inc., 778 F.2d 1266,
1268 (7th Cir. 1985). Under the Illinois version of the Uniform Arbitration Act, 710 ILCS 5/12(b),
the applicable limitations period for challenging all arbitral awards in Illinois is 90 days. Sullivan v.
Gilchrist, 87 F.3d 867, 870 (7th Cir. 1996).

From the time that Titan received the JAB award at West's residence on January 21, 2001,
no representative from Titan ever filed suit to vacate the award. Although some of the named
Defendants filed a response to the 1DC’s complaint to enforce the arbitration award on May 9,

2001, neither Titan nor any its representatives, including Radice, filed a motion to vacate the award

1


from any employee regarding the previous November 1, 2001, correspondence shall be
disregarded by the employer.” (Letters from Radice to Former 1999, 2000 Employees of Titan of
01/14/02, Ex.s K and L to Plaintiff's 56.1 Statement.)
DISCUSSION

The central issue in this case is whether Defendant Radice may be held liable for the
arbitration award issued by the JAB. The IDC argues that Radice is liable for Titan’s unpaid
obligations under the JAB award and has moved for summary judgment on this issue. The IDC
asserts that Radice is personally liable for Titan’s obligations under Illinois statutory and common
law, which provides that individuals who act on behalf of an unincorporated business entity are
liable for all resulting debts and liabilities. Defendant Radice contends that the audit award issued
by the JAB is not final, is not accurate, and has not been confirmed by a court. Radice also argues
that he cannot be held personally liable for Titan’s obligations because he was deprived of due
process by not being given the opportunity to appear before the JAB and by being subjected to an
arbitration award that was not entered against him individually. For the reasons explained here,
the court finds that the IDC is entitled to summary judgment on this issue and concludes that
Radice is personally liable under the JAB award against Titan.
A. Summary Judgment Standard of Review

Summary judgment is proper when “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Alexander v.
Wisconsin Dep't of Health and Family Servs., 263 F.3d 673, 680 (7th Cir. 2001). A genuine issue
of material fact exists “only if there is sufficient evidence for a jury to return a verdict for that party.”

Alexander, 263 F.3d at 680, citing Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir.

10


Following completion of the audit, the JAB rendered a decision against Titan and West,
awarding the Union $65,256.07 for wages to employees, fringe benefit fund contributions,
liquidated damages, dues, and audit fees. (JAB Award Declaration (“JAB Award”), Ex. F to Pl.’s
SJ Memo.) The award states that Titan retains the right through the arbitration process to contest
the amount awarded:

When [Titan] and/or West pay that full amount to District Council No. 1, they may

request that the money not be distributed until a further hearing before the Joint

Arbitration Board can be held and at that hearing they may present whatever

arguments and evidence they wish in support of a request that the amount owed be

reduced and a portion of the payment be returned to them.
(/d.) Moreover, the JAB award articulates the consequences in the event Titan and West fail to
abide by the terms of the award:

In the event the employer [Titan] and Mr. West fail to abide by the terms of this

award and the Union and/or the funds resort to legal action to enforce the award,

the employer and Mr. West shall reimburse the Union and/or the funds for all costs

and legal fees incurred in enforcing the award, and the employer and Mr. West shall

also be liable for interest at the rate of 10% a year from the date of the original

hearing on December 1, 1999, to the date of payment.

(/d.) Defendant Radice argues that the award declaration is not final on its face. (Def.'s 56.1 Resp.
30) The court notes, however, that the award itself states at the end of the first paragraph that
it is a “FINAL AWARD.” (JAB Award.) Radice also questions the finality of the JAB award in light
of two letters of protest from Radice and Marzullo, but the court notes that those letters were sent
in September and October 2000, prior to entry of the Final Award. (Def.’s 56.1 {] 30; Letter from
Radice to Marinopoulos of 9/11/00, Ex. A-1 to Def.’s 56.1 Resp. (“Radice letter”); Letter from
Marzullo to Mary E. Frost of Oct. 16, 2002 (‘Marzullo Letter”), Ex. A-3 to Def.’s 56.1 Resp.)’
The Union attached a copy of the JAB’s award decision in a letter sent to Titan at the State

Street address on December 14, 2000. (Letter from Marinopoulos to West of 12/14/00, Ex. G to

7 The October 16, 2000 letter names both Radice and Marzullo as contacts for
discussion of the disputed amounts owed. The court infers that Ms. Frost was one of the Union's
auditors.


West, Thomas E. Marzullo, Terrance M. Martin, and Larry Fromelius, along with Mike Romanelli.?
(Radice Dep., at 10, 18, 119-21.) Radice described Titan as a “venture” comprised of the
individuals present at the meeting other than Mike Romanelli, who was present as a potential
employee. (/d., at 24, 266-268.) Radice agreed to become involved in the venture by taking
“charge of the administration effects, the administration of the entity that was being formed,” and
considered himself part of the venture. (/d., at 16-17, 24.) There were no compensation
arrangements established for Radice when he began to perform tasks on behalf of Titan, but he
felt confident that he would be compensated at some point. In fact, he never billed Titan and was
never paid directly for any of his work. (/d., at 15, 18, 63-64.)

On February 23, 1998, Radice first interacted with an outside person or entity on behalf of
Titan, when he completed an application for an employer identification number from the Internal
Revenue Service. (/d., at 18-20.) He signed the application and designated himself as “President”
on the application. (/d.) After completing the application, Radice informed some of the other
members of the venture that he had applied for the employer identification number and provided
them with copies of the application. (/d., at 26.) On February 26, 1998, Radice completed a
corporate resolution form on behalf of Titan in order to open a bank account at Northern Trust
Company. (/d., at 29-30, 33-34.) On that form, he listed the company’s name as “Titan Erectors,
Inc.,” indicated on the form that he had been elected President of the company, and identified
Thomas Marzullo as Secretary-Treasurer. (/d.) Radice informed Marzullo on the same day that
he had designated him as Secretary-Treasurer.> (/d.)

On or around May 28, 1999, an unspecified representative of Titan signed a collective

2 The transcript of Mr. Radice’s deposition spells the name Rominelli, but the court
will use the spelling that appears in Plaintiff's briefs.

3 The record does not explain how Radice informed Marzullo of this fact.

3


Specifically, Radice identified himself to the IRS and Titan’s bank as president of the company,
obtained information about wage rates and benefit fund contributions from the Union, paid Titan's
“corporate” obligations to the tune of $30,000.00, exercised authority to write checks from Titan to
himself, and handled other significant administrative matters.

Radice has offered no direct response to Plaintiffs arguments for imposing personal liablity
for the debts and liabilities of unincorporated entities under Illinois law. Instead, he argues that he
is not personally liable for Titan’s obligations because he was deprived of due process of law and
is entitled to exercise his constitutional right to “confront his accusers.” (Defendant's 56.1 Resp.,
at 2-3.) Defendant not only fails to cite any case law to support his contentions, but also
inappropriately invokes the Sixth Amendment of the Constitution, which only provides such
protections in criminal prosecutions. U.S. CONST. amend. VI.; Austin v. United States, 509 U.S.
602, 608 (1993). Clearly, this action does not involve a criminal prosecution.

Second, Defendant asserts that the court does not have jurisdiction to confirm an arbitration
award where the individual against whom confirmation is sought was not a party to the arbitration
hearing. (Def.’s 56.1 Resp., at 4-5.) The Union contends that Defendant's claim is contrary to
federal precedent addressing labor arbitration. (Plaintiff's Reply Memorandum in Support of Motion
for Summary Judgment Against Defendant Radice (hereinafter, “Pl.’s Reply Mem.”).) Specifically,
the IDC argues that the decision in Plumbers’ Pension Fund, Local 130 v. A-Best Plumbing &
Sewer, Inc., No. 88 C 3087, 1992 WL 59098 (N.D. Ill. March 13, 1992) is persuasive in establishing
that an individual defendant does not have to be a party to arbitration proceedings in order to be
held personally liable for a JAB award entered against him.

In Plumbers’ Pension Fund, a union sought summary judgment on the issue of whether two
individual defendants were personally liable for an arbitration award entered against a corporation
they controlled. In granting summary judgment in favor of the plaintiff union, the court held that
although the individual owners were not parties to the labor agreement, they were liable for the

14


that once the contractor pays the amount owed to the Union in full, he can obtain a full hearing from
a JAB before any of the money is disbursed. (JAB Award.)

Finally, Defendant argues that there is a genuine issue of material fact as to the proper
amount of the arbitration award, and that this court must therefore deny Plaintiff's motion for
summary judgment. Even if the proper amount awarded by the JAB is incorrect, the court
reiterates that the Defendant is precluded from raising this argument at this time because of his
failure to timely file a suit to vacate the arbitration award. In any case, a careful review of the two
audits satisfies this court that no mistake was made here: the first audit resulted in an award of
$65,256.07 including benefit fund contributions, dues, liquidated damages, audit fees, and wages,
while the second audit performed in January 2002 and addressing all costs except wages,
calculated a total due of $35,830.46. Plaintiff is not attempting to obtain a windfall of over $30,000,
as the Defendant asserts, but correctly argues that the two audits had different scopes."

CONCLUSION

For the foregoing reasons, Plaintiff's motion for summary judgment against Defendant
Radice (Doc. No. 69-1) is granted. Judgment is entered in favor of Plaintiff and against Defendant
Radice in the amount awarded by the JAB.

ENTER:

Dated: August 20, 2002

REBECCA R. PAL
United States District

" Plaintiff also argues that some of the Defendant's responses to the Plaintiff's 56.1
Statement were not properly submitted pursuant to Local Rule 56.1. In light of its disposition of this
case, the court dismisses Plaintiff's objections as moot.

16


Defendant Gerald Radice (“Radice”), arguing that because the unincorporated Titan is required to
comply with the JAB award, and because Radice misleadingly held himself out as the “president”
of what amounted to a non-existent corporation, Radice is personally liable for Titan's unpaid
obligations under the CBA. For the reasons set forth below, the motion is granted.

FACTUAL BACKGROUND

The Union is a “labor organization” within the meaning of 29 U.S.C. § 152(5). (Answer to
Plaintiffs First Amended Complaint {| 2 (hereinafter “Ans”).) Titan Erectors is a business entity
which is not incorporated, but is an “employer” within the meaning of 29 U.S.C. § 152(2). (/d. 43.)
Gerard V. Radice (“Radice”) and Donald W. West (“West”) are individuals who are “persons” within
the meaning of 29 U.S.C. § 152(1) and who were involved in Titan, as explained below. (Plaintiff's
First Amended Complaint (hereinafter “PI.'s Am. Compl.”) 8.) This court has jurisdiction over this
matter and venue is proper pursuant to § 301 of the Labor-Management Relations Act (“LMRA’),
29 U.S.C. § 185(a) and (c). (Ans. { 1.)

The business entity known as Titan came into existence as a result of discussions in 1998
among a group of people involved with an entity named Fortech, LLC (“Fortech”), which is in the
business of manufacturing building panels. (12/7/01 Deposition of Gerald V. Radice (“Radice
Dep.”), Exhibit to Plaintiff's Memorandum in Support of Motion for Summary Judgment (“PI.’s SJ
Memo"), at 10'; 9/25/01 Deposition of Donald West (“West Dep.”), Ex. to Pl.'s SJ Memo, at 7-8,
16.) Radice and West testified that this group of people decided to create a separate business
entity that would install the building panels manufactured by Fortech. (/d.) The first meeting held

for purposes of establishing Titan occurred on January 31, 1998, and included Defendants Radice,

1 Plaintiff has not provided an exhibit number or letter for the depositions given by
Radice or West. In the materials attached to Plaintiff's summary judgment memorandum, Exhibits
A through L are followed in succession by copies of Plaintiff's First Amended Complaint; Radice’s
Answer to the First Amended Complaint; the declaration of Angelina Mieliulis, Mr. Radice’s
deposition transcript, and Mr. West’s deposition transcript.

2


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION “py,

ILLINOIS DISTRICT COUNCIL NO. 1
OF THE INTERNATIONAL UNION OF
BRICKLAYERS AND ALLIED
CRAFTWORKERS, AFL-CIO

Plaintiff,

v. No. 01C 716
DONALD W. WEST, Individuatly and
d/b/a TITAN ERECTORS; THOMAS E.
MARZULLO, LADDIE FROMELIUS,
TERRANCE M. MARTIN, GERALD V.
RADICE, and LARRY FROMELIUS,
Individually and d/b/a TITAN ERECTORS;
AND TITAN ERECTORS, INC.

Judge Rebecca R. Pallmeyer

Defendants.

wee eS SSS SS SS SS SS SS

MEMORANDUM OPINION AND ORDER

On or around May 28, 1999, Plaintiff Illinois District Council No. 1 of the International Union
of Bricklayers and Allied Craftworkers, AFL-CIO, (the “IDC” or the “Union”) entered into a collective
bargaining agreement (“CBA”) with persons acting on behalf of an employer entity called Titan
Erectors (“Titan”). When Titan allegedly failed to pay wages and fringe benefit fund contributions,
the IDC filed a grievance against Titan pursuant to the requirements of the CBA. A Joint Arbitration
Board (“JAB”) issued an award in favor of the Union on June 8, finding Defendants Titan and its
principal, Defendant Donald W. West, liable for the full amount of damages. Following an audit on
December 14, 2000, a copy of the JAB’s written decision was served on Titan and West by mail.
The Defendants have not yet complied with the JAB’s award. The IDC timely filed this action on
February 1, 2001, requesting this court to enforce the arbitration award entered in its favor and
against Donald W. West, Thomas E. Marzullo, and Titan. In two amended complaints, IDC named
additional Defendants: Laddie Fromelius, Terrance M. Martin, Gerald V. Radice, and Lary

Fromelius, individually, and d/b/a Tiitan. The IDC now moves for summary judgment against



within 90 days of the receipt of the award." The failure to file a motion to vacate within the
limitations period precludes Radice from raising any challenges at this time, including those
regarding the actual amount of the arbitration award, the finality of the award, or whether the award
required formal confirmation before it is enforceable. See Gilchrist, 87 F.3d at 871 (only avenue
for dismissal of an arbitration award is a timely suit to vacate); Sullivan v. Lemoncello, 36 F.3d 676,
681 (7th Cir. 1994) (defendant's failure to seek vacation of arbitration awards within the 90-day
limitation period barred it from challenging the plaintiff's action to enforce the awards). This court
concludes that it is unnecessary to evaluate the merits of Defendant's challenge to the enforcement
action because any such challenge is time-barred.
Cc. Radice’s Personal Liability under JAB Award

The Union asserts further that because Titan is an unincorporated business entity and
Radice is an active participant in the operations of the business, he is personally liable for Titan’s
obligation to comply with the JAB award consistent with Illinois statutory and common law. Radice
argues that even if he were otherwise personally liable for Titan’s debts, the award cannot be
enforced against him because he was denied his constitutional right to defend himself before the
arbitration panel. Radice also asserts that the court does not have jurisdiction to confirm the
arbitration award because he was not a party to the arbitration proceeding. Finally, Defendant
argues that there is a genuine issue of material fact as to the proper amount of the arbitration
award.

Under the LMRA, federal courts are authorized to fashion a body of federal law from the

policy of national labor laws for enforcement of collective bargaining agreements. Textile Workers

% Defendant asserts that a motion to vacate was filed in November 2001, but has
offered no evidence of any such motion as required by Local Rule 56.1. The January 17, 2002
letter from the Union’s accountants to which Defendant refers the court makes no reference to any
motion prepared by Defendant, nor does it suggest with whom or when any such motion had been
filed. ((Eisen, Fey Letter.) In any event, any motion purportedly filed by Defendants in November
2001 was filed well beyond the 90-day period discussed in the decision.

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corporation's obligations under a collective bargaining agreement because the circumstances of
the case made it proper to pierce the corporate veil. /d. at*18. In that case, as in the one currently
before the court, corporate formalities were not observed, “personal” payments were made from
the business entity to its individual! officers without explanation, and the entity in question appears
to have been woefully undercapitalized. As the Plaintiff here notes, moreover, its case for
extending individual liability is significantly more compelling than that of the Plumber’s Pension
Fund: Because Titan never pursued incorporation, this court need not pierce a corporate veil before
finding Radice liable. Just as the defendant individual owners in Plumbers’ Pension Fund were
liable despite not being parties to the collective bargaining agreement, this court holds Radice liable
for the unincorporated Titan's obligations, pursuant to 805 ILCS 5/3.20 and Illinois common law.

Third, Defendant asserts (without reference to any authority) that if he is held liable for
Titan's obligations, he should be entitled to introduce evidence rebutting Plaintiff's allegations.
(Def.’s Resp. to Pl.’s Mot. for Summ. J., at 4-5.) The Plaintiff argues that the absence of a
confirmation of the JAB award does not interfere with enforcement of that award against Radice
because there is no authority for the notion that an arbitration award must first be confirmed before
it can be enforced. The court agrees and concludes that confirmation is unnecessary for
enforcement of the award. In any event, in this case the necessary confirmation arguably has
already occurred. On October 23, 2001, the court entered judgment in favor of Plaintiff and against
Defendant West by agreement. West has since moved to vacate the judgment, but the court
denied his motion on May 23, 2002, see Illinois District Council No. 1 of the International Union of
Allied Bricklayers and Allied Craftworkers, AFL-CIO v. West, No. 01 C 716, 2002 WL 1046703
(N.D. Ill. May 23, 2002), and Mr. West’s appeal from the October 23, 2001 judgment is now
pending. Mr. Radice had appeared through counsel several months before the agreed judgment
was entered and was certainly on notice of the status of this case. Finally, Defendants retained
the right to challenge the Union's calculations; as noted above, the JAB award specifically provides

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