3:06CV7063.United States District Court, N.D. Ohio.
March 23, 2006
CONSENT ORDER AND JUDGMENT
JAMES CARR, District Judge
Plaintiff Elaine L. Chao, Secretary of Labor, United States Department of Labor, pursuant to the provisions of the Employee Retirement Income Security Act of 1974(“ERISA”), as amended, 29 U.S.C. §§ 1001, et seq., filed a complaint against defendants. Toledo Electrical Joint Apprenticeship and Training Committee, David R. Wellington, Daniel Bollin, Donald Burnard, Patrick Davis, Bruce Glaser, Joseph Gray, Lauretta Papp, Kenneth Roach, Daniel Saad, James Snyder and Ronald Wilkins, alleging violations of ERISA §§ 406(a)(1)(D) and 406(b)(2) with respect to the Toledo Electrical Joint Apprenticeship and Training Trust Fund (“Fund”).
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The Defendants have waived service of process of the complaint and have admitted to the jurisdiction of this Court over them and the subject matter of this action.
The plaintiff and defendants have agreed to resolve all matters in controversy in this action between them (except for the imposition by Plaintiff of any penalty pursuant to ERISA § 502(c) and (1), 29 U.S.C. § 1132(c) and (1), and any proceedings related thereto), and said parties do now consent to entry of a Judgment and Order by this Court in accordance therewith.
The parties agree that, if the Secretary of Labor assesses a penalty pursuant to ERISA § 502(1) in connection with the violations alleged in this matter, the “applicable recovery amount” shall include all amounts paid in accordance with this Consent Order and Judgment.
Upon consideration of the record herein, and as agreed to by the parties, the Court finds that it has jurisdiction to enter this Consent Order and Judgment.
IT IS THEREFORE ORDERED that:
1. The Defendants are permanently enjoined and restrained from violating the provisions of Title I of ERISA, 29 U.S.C. § 1001 et seq.
2. Defendants shall, through their authority as members of the Toledo Electrical Joint Apprenticeship and Training Committee, cause the Toledo Electrical Joint Apprenticeship and Training Trust Fund to enter into loan guarantee agreements with the Toledo Chapter of the National Electrical Contractors Association, Inc. and Local Union No. 8 International Brotherhood of Electrical Workers. These guarantees shall relate to the financing obtained by the Fund to purchase and construct a new training facility in May 2000. Copies of the loan guarantee agreements are attached hereto and incorporated herein by reference.
3. The entry into the loan guarantee agreements pursuant to paragraph 2 above shall constitute a correction, under Prohibited Transaction Exemption 79-15, of any violations of § 406
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which may have occurred as a result of the Funds’ purchase of property from the No. 8 Building Corporation in 2000. The plaintiff has made a determination not to assess a penalty under ERISA § 502(i), 29 U.S.C. § 1132(i), with respect to these transactions.
4. Each party agrees to bear its, his or her own attorneys’ fees, costs and other expenses incurred by such party in connection with any stage of this proceeding to date including, but not limited to, attorneys’ fees which may be available under the Equal Access to Justice Act, as amended.
5. The Court shall maintain jurisdiction over this matter only for purposes of enforcing this Consent Judgment and Order.
6. Nothing in this Order is binding on any government agency other than the United States Department of Labor.
The parties hereby consent to the entry of this consent order and judgment: FOR THE SECRETARY OF LABOR
HOWARD M. RADZELY
Solicitor of Labor
JOAN E. GESTRIN
Regional Solicitor
________________________ DATED: 2-21-06CHRISTINE Z. HERI
Senior Trial Attorney
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P.O. ADDRESS:
Office of the Solicitor U.S. Department of Labor 230 South Dearborn Street, 8th Floor Chicago, Illinois 60604 Telephone: (312) 353-7836
FOR THE DEFENDANTS:
TOLEDO ELECTRICAL JOINT APPRENTICESHIP AND TRAINING TRUST FUND:
By_______________________ Dated3-6-2006
Its Chairperson
TOLEDO ELECTRICAL JOINT APPRENTICESHIP AND TRAINING COMMITTEE:
By _______________________ Dated2-5-06
Its Secretary
__________________________ Dated2-6-06
DAVID R. WELLINGTON
__________________________ Dated2-9-06
DANIEL BOLLIN
__________________________ Dated2/6/06
DONALD BURNARD
__________________________ Dated2/8/06
PATRICK DAVIS
__________________________ Dated2/13/06
BRUCE GLASER
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_________________________ Dated2/3/06
JOSEPH GRAY
_________________________ Dated2/9/06
LAURETTA PAPP
_________________________ Dated2-3-06
KENNETH ROACH
_________________________ Dated02-13-06
DANIEL SAAD
_________________________ Dated1/31/06
JAMES SNYDER
_________________________ Dated2/6/06
RONALD WILKINS
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Loan Guarantee
The International Brotherhood of Electrical Workers, Local Union No. 8 (hereinafter “Local 8”) hereby guarantees payment should the Toledo Electrical Joint Apprenticeship and Training Trust Fund fail to pay any installment payment or amount due pertaining to the:
1. Promissory Note entered into on May 24, 2000 for the original amount of $671,740 payable to the No. 8 Building Corporation and/or
2. Variable Rate Demand Economic Development Revenue Bond and accompanying Promissory Note entered into on May 25, 2000 in the original amount of $1,960,000.
The guarantee for both loans shall remain in effect until the full amount of both loans is paid. Said guarantee shall operate so that prior to any adverse action against the Toledo Electrical Joint Apprenticeship and Training Trust Fund, such as foreclosure or litigation, for the failure of Toledo Electrical Joint Apprenticeship and Training Trust Fund repaying either of the above two loans, Local 8 shall take whatever action necessary in conjunction with the Ohio/Michigan Chapter of the National Electrical Contractor’s Associations, Inc. to assume full responsibility to repay the remaining outstanding balance(s).
__________________________________ 1-20-06
Dennis C. Duffey, Business Manager Date
__________________________________ 1-20-06
James Kozlowski, Treasurer Date
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Loan Guarantee
The Ohio/Michigan Chapter of the National Electrical Contractors Association, Inc. (hereinafter “NECA”) hereby guarantees payment should the Toledo Electrical Joint Apprenticeship and Training Trust Fund fail to pay any installment payment or amount due pertaining to the:
1. Promissory Note entered into on May 24, 2000 for the original amount of $671,740 payable to the No. 8 Building Corporation and/or
2. Variable Rate Demand Economic Development Revenue Bond and accompanying Promissory Note entered into on May 25, 2000 in the original amount of $1,960,000.
The guarantee for both loans shall remain in effect until the full amount of both loans is paid. Said guarantee shall operate so that prior to any adverse action against the Toledo Electrical Joint Apprenticeship and Training Trust Fund, such as foreclosure or litigation, for the failure of Toledo Electrical Joint Apprenticeship and Training Trust Fund repaying either of the above two loans, NECA shall take whatever action necessary in conjunction with The International Brotherhood of Electrical Workers, Local Union No. 8 to assume full responsibility to repay the remaining outstanding balance(s).
_________________________________ 1-20-06
Daniel Bollin, President Date
_________________________________ 1-20-06
Todd Michaelsen, Chapter Manager Date
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