Operating Engineers Local No. 101 Pension Fund; et al. v. K.C. Excavating & Grading, Inc.; G&C Excavating, LLC

Operating Engineers Local No. 101 Pension Fund and the other plaintiffs
brought an action for recovery of unpaid contributions for fringe benefits under
ERISA and recovery of unpaid union wages and dues under § 301 of the Labor
Management Relations Act (LMRA), 29 U.S.C. § 185. The District Court1 granted
summary judgment to plaintiffs, concluding that no material facts were in dispute and
holding that defendant G&C Excavating, LLC, was the alter ego of defendant K.C.
Excavating & Grading, Inc., for the purposes of both the ERISA claim and the § 301
claim. Determining that the two defendants are jointly and severally liable for the
unpaid contributions and union wages, the court awarded damages as follows:
$35,398.53 in unpaid contributions; $7,326.70 in liquidated damages; $1,157.25 in
accrued interest; and $99,960.44 in unpaid wages, for an award of damages in the
total amount of $143,842.92. The District Court entered final judgment, and
defendants appeal.

For reversal, defendants argue that the summary-judgment record creates a
genuine issue of material fact as to whether the defendants are alter egos of one
another. They also argue that as a matter of law § 301 of the LMRA does not allow
a union to recover unpaid wages on behalf of would-be employees deprived of work
by an employer in violation of a collective bargaining agreement. Having carefully
considered the briefs and the record, we conclude the first argument is without merit
and the second argument has been waived. We are satisfied the evidence presented
by defendants in opposing plaintiffs' motion for summary judgment is inadequate to
create a genuine issue of material fact as to the alter-ego relationship between the two defendants. Defendants' argument that the plaintiff union may not recover unpaid
wages on behalf of would-be employees was made for the first time after judgment
was issued by the District Court, and thus was waived. See Schoffstall v. Henderson,
223 F.3d 818, 827 (8th Cir. 2000); Concordia Coll. Corp. v. W.R. Grace & Co., 999
F.2d 326, 330 (8th Cir. 1993), cert. denied, 510 U.S. 1093 (1994).

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