IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SMART LOCAL 265 WELFARE FUND, )

)

SMART LOCAL 265 PENSION FUND, )

)

SMART LOCAL 265 JOINT APPRENTICE )

TRAINING COMMITTEE, )

)

SHEET METAL WORKERS LOCAL 265 )

INDUSTRY FUND, ) CIVIL ACTION

)

SMART LOCAL 265 SUPPLEMENTAL ) NO. 20 C 2338

RETIREMENT SAVINGS PLAN, )

) JUDGE

SMART LOCAL 265 VACATION FUND, )

)

SMART LOCAL 265 LABOR MANAGEMENT )

COOPERATIVE COMMITTEE TRUST FUND, )

)

KEVIN J. SCHELL, as Administrative Manager/ )

Authorized Agent of Plaintiff Funds, and, )

)

SMART LOCAL 265, )

)

Plaintiffs, )

)

vs. )

)

R.G.H. HEATING & COOLING, INC., )

an Illinois corporation, )

)

SANDRA SHINES, an individual, )

)

Defendants. )

COMPLAINT

The Plaintiffs, SMART LOCAL 265 WELFARE FUND, SMART LOCAL 265 PENSION

FUND, SMART LOCAL265 JOINT APPRENTICE TRAINING COMMITTEE, SHEET METAL

WORKERS LOCAL 265 INDUSTRY FUND, SMART LOCAL 265 SUPPLEMENTAL

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RETIREMENT SAVINGS PLAN, SMART LOCAL 265 VACATION FUND, SMART LOCAL

265 LABOR MANAGEMENT COOPERATIVE COMMITTEE TRUST FUND, KEVIN J.

SCHELL, as Administrative Manager ofthe Plaintiff Funds(collectively referred to asthe “Funds”),

and SMART LOCAL 265 (“Union”), by their attorneys, complaining of the Defendants, R.G.H.

HEATING &COOLING,INC., anIllinois corporation, and SANDRASHINES, anindividual, allege

as follows:

COUNT I

1. This action arises under the laws of the United States and is brought pursuant to the

Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§1132, 1145

(hereinafter referred to as "ERISA"). Jurisdiction is based upon the existence of questions arising

thereunder, as hereinafter more fully appears.

2. PlaintiffsSMARTLOCAL265 WELFARE FUND, SMARTLOCAL265 PENSION

FUND, SMART LOCAL265 JOINT APPRENTICE TRAINING COMMITTEE, SHEET METAL

WORKERS LOCAL 265 INDUSTRY FUND, SMART LOCAL 265 SUPPLEMENTAL

RETIREMENT SAVINGS PLAN, SMART LOCAL 265 VACATION FUND, SMART LOCAL

265 LABORMANAGEMENTCOOPERATIVECOMMITTEETRUSTFUNDarevariouswelfare,

pension and related joint, labor-management funds and bring this action as “employee welfare benefit

funds,” and “plans,” under ERISA, and Plaintiff KEVIN J. SCHELL is the Administrative Manager

and/or authorized agent of Plaintiff Funds and a fiduciary with respect thereto. Plaintiff Funds are

administered within this District.

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3. Defendant, R.G.H. Heating & Cooling, Inc., is a party to a collective bargaining

agreement withInternationalAssociationofSheet Metal, Air,Rail and TransportationWorkersLocal

Union 265.

4. Defendant is obligated to make fringe benefit contributions to the Funds, under the

terms of the certain “Agreements and Declarations of Trust,” establishing and outlining the

administration of these Funds, and pursuant to the terms of a collective bargaining agreement

adopting these “Agreements and Declarations of Trust” and entered into by Defendant and SMART

Local 265, which represents a bargaining unit, the members ofwhich are beneficiaries ofthose Funds.

5. On March 15, 2019, Defendant, Sandra Shines, personally guaranteed, in writing, the

payment ofthe fringe benefit contribution obligationsto Plaintiffs ofR.G.H. Heating & Cooling, Inc.

By reason of the personal guarantee, Sandra Shines is an “employer” within the meaning of ERISA,

29 U.S.C. §1002(5).

6. As employers obligated to make fringe benefit contributions to the Funds, Defendants

is specifically required to do the following:

(a) To submit to Plaintiffs for each month, by the 20th day of the month following the

month for which the report is made, a report stating the names, social security

numbers, and total hours worked in such month by each and every person on whose

behalf contributions are required to be made byDefendantsto Plaintiffs; or, if no such

persons are employed for a given month, to submit a report so stating;

(b) To accompany the aforesaid reports with payment of contributions based upon an

hourly rate as stated in the applicable agreements;

(c) To make all payroll books and records available to Plaintiffs for the purpose of

auditing same, to determine whether Defendants are making full payment asrequired

under the applicable agreements;

(d) To compensate Plaintiffsfor the additional administrative costs and burdensimposed

by Defendants’ failure to pay, or untimely payment of, contributions by way of the

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payment of liquidated damages in the amount of 10 percent of any and all contributions which are not timely received by Plaintiffs for a particular month, as specified

fully in Paragraph 4(a) above, together with the interest as provided in ERISA, 29

U.S.C. §1132(g);

(e) To pay any and all costsincurred by Plaintiffsin auditing Defendants’ payrollrecords

should it be determined that Defendants were delinquent in the reporting or

submission of all contributions required of it to be made to Plaintiffs;

(f) To pay Plaintiffs’ reasonable attorneys’ fees and costs necessarily incurred in the

prosecution of any action to require Defendants to submit their payroll books and

records for audit or to recover delinquent contributions;

(g) To furnish to Plaintiffs a bond with good and sufficient surety thereon, in an amount

acceptable to Plaintiffs, to cover future contributions due the Plaintiffs.

7. Defendants are delinquent and have breached their obligations to Plaintiffs and their

obligations under the Plans in the following respects:

(a) Defendants have failed and refused to submit all amounts due pursuant to the terms

of a Promissory Note entered into on March 15, 2019 by Defendants for the

repayment of contributions, liquidated damages and audit feesincurred for the period

June 2017 through October 2018 (a copy of the Promissory Note executed on March

15, 2019 by Sandra Shines is attached hereto);

(b) Defendant has failed and refused to submit all of its reports to Plaintiffs due to date

and/or has failed to make payment of all contributions acknowledged by Defendants

thereon to be due Plaintiffs. Defendants are, therefore,subject to liquidated damages,

as authorized by the Trust Agreements. Plaintiffs have assessed liquidated damages

against the Defendants, as authorized by the Trust Agreements, but Defendants have

failed and refused to make payment of said liquidated damages.

8. That upon careful review of all records maintained by them, and after application of

any and all partial payments made by Defendants, there is a total of $61,173.24 known to be due

Plaintiffs from Defendants, subject however, to the possibility that additional monies may be due

Plaintiffs from Defendants, based upon Defendants' failure to submit all required reports or to

accuratelystate allhoursfor which contributions are due on reports previously submitted, and subject

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further to the possibility that additional contributions and liquidated damages will come due during

the pendency of this lawsuit.

9. Plaintiffs have requested that Defendants perform their obligations as aforesaid, but

Defendants have failed and refused to so perform.

10. Defendants' continuing refusal and failure to perform its obligations to Plaintiffs is

causing and will continue to cause irreparable injuries to Plaintiffs for which Plaintiffs have no

adequate remedy at law.

WHEREFORE, Plaintiffs pray:

(A) That an account be taken as to all employees of Defendants covered by the collective

bargaining agreement or agreements as to wagesreceived and hours worked by such

employees to determine amounts required to be paid to the Plaintiffs, covering the

period for which the collective bargaining agreement is to be effective;

(B) That Defendants be enjoined and ordered to submit all delinquent monthly contribution reports to Plaintiffs with the information required to be provided thereon, to

continue to submit such reports while this is pending, and to comply with their

contractual obligation to timely submit such reports in the future;

(C) That judgment be entered in favor of Plaintiffs and against Defendants for all unpaid

contributions, liquidated damages, anycosts of auditing Defendants'records, accrued

interest, and Plaintiffs' reasonable attorneys' fees and court costs necessarily incurred

in this action as specified herein, or as subsequently determined, all as provided for

in the plans and in ERISA;

(D) That Plaintiffs have such further relief as may be deemed just and equitable by the

Court, all at Defendants' cost.

COUNT II

11. This action arises under the laws of the United States and is brought pursuant to the

terms of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. §185. Jurisdiction

is based on the existence of questions arising thereunder as hereinafter more fully appears. The rights

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asserted herein arise from the same series oftransactions as Count I and there are common questions

of law and facts to both Counts.

12. Plaintiff Union is a labor organization representing certain of Defendant’s employees

as the duly authorized collective bargaining representative, and is party to a certain collective

bargaining agreement to which Defendant, R.G.H. HEATING & COOLING, INC., an Illinois

corporation, is also a party and to which said Defendant has agreed to be bound.

13. Under the aforesaid collective bargaining agreement, Defendant has agreed to deduct

from the wages of those of its employees represented by Plaintiff Union in collective bargaining and

who execute proper written authorization, sums of money as and for union dues, which monies are

to be remitted to Plaintiff Union on a monthly basis along with Defendant's regular fringe benefit

reports and contributions as described in Count I of this Complaint.

14. Defendant has deducted or has been required to deduct dues from the wages of its

employees asrequired by the collective bargaining agreement, but hasfailed and refused to remit any

part ofsuch monies so deducted to Plaintiff Union, but hasinstead converted such moniesto its own

use.

15. The total amount of money that Plaintiff Union knows Defendant to have failed to

remit in violation of the collective bargaining agreement is unknown at this time due to Defendant’s

failure to submit all required monthly fringe benefit contribution reports.

16. The Defendant's acts and omissions as described herein constitute a breach of the

collective bargaining agreement and entitle Plaintiff Union to recover from Defendant all monies

which Defendant was required to remit to Plaintiff Union whether deducted from wages or not and

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whether traceable or untraceable commingled with Defendant's assets, and further entitle Plaintiff

Union to recover from Defendant its damages for breach of Defendant's obligations.

WHEREFORE, Plaintiff Union prays:

(A) That judgment be entered in its favor and against Defendant for all sums determined

to be due Defendant to Plaintiff Union;

(B) That Plaintiff Union recover from Defendant its damages and all costs of collection

and recovery including its reasonable attorneys' fees and costs;

(C) That Plaintiff Union have such further relief as may be considered just and equitable

by the Court, all at Defendant's cost.

COUNT III

Breach of Promissory Note

17. Plaintiffs reallege and incorporate by reference Paragraphs 2 through 10 into this

Count.

18. Plaintiffsstate that federaljurisdiction over this claimis also proper asthis claimis “so

related” to the claim in Count I that it forms “part of the same case or controversy.” 29 U.S.C.

§1367.

19. Defendants have not timely paid $24,634.84 of the remaining amount due under the

Promissory Note. Defendants have failed to observe the terms of and breached the PromissoryNote,

and are liable therefore for breach of contract.

WHEREFORE, Plaintiffs pray that this Court enter judgment against Defendants for the

balance due on the Promissory Note ($24,634.84), and such further relief as may be deemed just and

equitable by the Court.

/s/ Cecilia M. Scanlon

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Catherine M. Chapman

Cecilia M. Scanlon

Attorneys for the Plaintiffs

BAUM SIGMAN AUERBACH & NEUMAN, LTD.

200 West Adams Street, Suite 2200

Chicago, IL 60606-5231

Bar No.: 6288574

Telephone: 312/216-2577

Facsimile: 312/236-0241

E-Mail: cchapman@baumsigman.com

I:\265J\R.G.H. Heating\#28274\complaint.cms.df.wpd

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