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F:\cmecf\cv\3\08-2133op920.wpd
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Thursday, 20 September, 2012 11:38:16 AM
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION ____________________________________________________________________________ NECA-IBEW PENSION TRUST FUND, NECA-IBEW WELFARE TRUST FUND, and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION Case No. 08-CV-2133 Plaintiffs, BAYS ELECTRIC, INC., PREMIER ELECTRICAL CONTRACTORS, INC., and their successors in interest, DINKI ELECTRIC INC., BAYS COMPANY, LLC, and DENKI ELECTRIC CORPORATION, Defendants.
This case is before the court for ruling following the bench trial held on January 23,
24, and 25, 2012. This court has carefully reviewed the Stipulation of Uncontested Material
Facts included in the Pretrial Order, the transcript of the trial, the exhibits admitted into
evidence, and the written arguments submitted by the parties. Following this careful and
thorough consideration, this court rules in favor of Plaintiffs, NECA-IBEW Pension Trust
Fund, NECA-IBEW Welfare Trust Fund and International Brotherhood of Electrical
Workers Local Union No. 725, and against Defendants, Bays Electric, Inc. (Bays Electric),
Premier Electrical Contractors, Inc. (Premier Electric), Dinki Electric, Inc. (Dinki Electric),
Bays Company, LLC (Bays Company) and Denki Electric Corporation, Inc. (Denki Electric),
2:08-cv-02133-MPM-DGB # 152 Page 2 of 33
On June 16, 2008, Plaintiffs filed their Complaint (#1) in this court against Bays
Company, LLC d/b/a Bays Electric, Inc., Premier Electric, and their successor in interest,
Denki Electric. The Complaint stated that the action was brought pursuant to the Employee
Retirement Income Security Act of 1974 (ERISA), as amended, 29 U.S.C. § 1145, and the
Labor Management Relations Act of 1947 (LMRA), as amended, 29 U.S.C. § 185(a).
Plaintiffs attached copies of the letters of assent signed by Bays Electric and Premier Electric
and the trust agreements which obligated Bays Electric and Premier Electric to pay
contributions to the Pension Fund and Welfare Fund. Plaintiffs alleged that the controlling
officers of Bays Electric and Premier Electric became the controlling officers of Denki
Electric. Plaintiffs alleged that Denki Electric was the disguised continuation of its
predecessor companies and was bound by the agreements to make contributions to the
Pension Fund and Welfare Fund. Plaintiffs asked that Defendants be ordered to remit
contribution reporting forms and the required contributions to the Pension Fund and Welfare
Fund. Plaintiffs also sought delinquent contributions to the Pension Fund and Welfare Fund,
liquidated damages, interest, and attorney’s fees.
On November 20, 2008, Plaintiffs filed an Amended Complaint (#18). In December
2008, Defendants Bays Electric, Denki Electric and Premier Electric filed Answers to the
Amended Complaint (#28, #31, #32). There were problems with discovery in this case and,
on January 26, 2010, Magistrate Judge David G. Bernthal entered a Text Order and granted
Plaintiffs’ Motion to Compel. Judge Bernthal ordered Defendants to comply with the Order
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within 14 days and further ordered that the discovery period would be extended. On January
28, 2010, Judge Bernthal granted Plaintiffs’ Motion to add Dinki Electric as a party to this
action.1 On April 1, 2010, this court entered an Opinion (#70) and denied Defendants’
Motion for Summary Judgment (#47). Defendants argued that they were entitled to summary
judgment because this case is barred by a limitation of action pursuant to § 10(b) of the
National Labor Relations Act (NLRA), 29 U.S.C. § 160(b). This court specifically
concluded that the six-month statute of limitations discussed in Defendants’ Motion for
Summary Judgment was inapplicable to this case, finding that failing to remit funds to the
Pension Fund and Welfare Fund does not constitute an unfair labor practice as described in
29 U.S.C. § 158, so that an action to enforce an agreement to remit funds is not subject to the
six-month statute of limitations. On April 30, 2010, this court entered an Order (#75) and
denied Defendants’ Request for Clarification (#72), which challenged this court’s reasoning
and conclusion regarding the statute of limitations. This court referred to Plaintiffs’
Response to the Motion to Clarify (#74) and stated:
If this court’s Opinion was not adequately clear, Plaintiffs
thoroughly explained why the six-month statute of limitations
applicable to an unfair labor practice or duty of fair
representation claim under the National Labor Relations Act
does not apply to Plaintiffs’ claim, which is a delinquent
1 There was understandable confusion regarding whether Denki Electric and Dinki
Electric were the same or separate companies.
2:08-cv-02133-MPM-DGB # 152 Page 4 of 33
contribution collection action based on a written contract and
brought pursuant to ERISA, 29 U.S.C. § 1145. This court
thoroughly agrees with Plaintiffs’ clear explanation of this
On May 7, 2010, Plaintiffs filed a Second Amended Complaint (#76). Plaintiffs
added Dinki Electric as a Defendant and clarified that Bays Company is a successor in
interest to Bays Electric. Plaintiffs alleged that Dinki Electric was the disguised continuation
of its predecessor companies, Bays Electric and Premier Electric. Plaintiffs also alleged that
Bays Company is the disguised continuation of its predecessor companies, Bays Electric and
Dinki Electric and that Denki Electric is the disguised continuation of its predecessor
companies, Premier Electric and Dinki Electric.
On July 8, 2010, Dinki Electric filed a Motion to Dismiss for failure to properly effect
service within 120 days (#83). Judge Bernthal entered a Report and Recommendation (#95)
which recommended that the Motion to Dismiss be denied. On October 29, 2010, this court
entered an Order (#98) which accepted the Report and Recommendation and denied the
Motion to Dismiss. This court stated that Plaintiffs had notified the court that they had
effected service on Dinki Electric. This court stated:
Plaintiffs stated that Dinki’s registered agent is Bill Hillis.
According to the information Dinki provided to the Indiana
Secretary of State, the registered agent’s address is 650 E.
Carmel Drive in Carmel, Indiana. Bill Hillis is also listed as the
2:08-cv-02133-MPM-DGB # 152 Page 5 of 33
president of the company, with the same street address of 650 E.
Carmel Drive. Plaintiffs stated that they retained Express
Process Services, Inc. (Express) to serve Dinki. Plaintiffs
provided documentation showing that Express’s process server
went to 650 E. Carmel Drive to serve Dinki’s registered agent
with the Summons and Second Amended Complaint. The
process server could not find Hillis at that location. The other
tenants in the building at 650 E. Carmel Drive never heard of
Dinki Electric., Inc., or Bill Hillis. Plaintiffs stated that,
accordingly, Dinki has failed to maintain a registered agent at
the address shown in the Indiana Secretary of State’s records.
Plaintiffs stated that they therefore have served Dinki by
certified mail, return receipt requested. Plaintiffs stated, and
provided documentation to show, that service was mailed to the
president of the company, Bill Hillis, at 1173 Crawford Street,
Terre Haute, IN 47807, which is the company’s address
according to the Indiana Secretary of State’s records. Plaintiffs
stated that they also mailed additional copies to the other
addresses shown on the Secretary of State’s records. Plaintiffs
argued that they had effected service on Dinki under the
applicable provisions of the Indiana Code.
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This court stated that it “agree[d] wholeheartedly with Judge Bernthal that Dinki should not
be rewarded for its attempts to evade service of process” and that “[u]nder the unique
circumstances present here, this court concludes that Plaintiffs have effected service on
Dinki.” On November 5, 2010, Dinki Electric filed its Answer to the Second Amended
The parties filed cross motions for summary judgment and, on September 23, 2011,
this court entered an Opinion (#115) which denied the motions. This court stated that
Plaintiffs brought this action pursuant to ERISA and the LMRA to recover contributions to
the Pension Fund and Welfare Fund which were required by written agreements enforceable
against Bays Electric and Premier Electric. This court also stated, citing pertinent authority,
that the Pension Fund and Welfare Fund are multiemployer plans and may sue under ERISA
to recover required contributions in federal court. In addition, this court stated that, since the
breach of a contract between a union and an employer is actionable under section 301 of the
LMRA, Plaintiffs can base their claim on this section as well as ERISA.
This court then rejected Defendants’ argument that this court lacked subject matter
jurisdiction over Plaintiffs’ claim. This court again rejected (for the third time) Defendants’
argument that Plaintiffs’ claim was barred by a six-month statute of limitations. This court
also rejected Defendants’ argument that Dinki Electric, Denki Electric and Bays Company
cannot be liable under an alter ego theory, a successor employer theory or a single employer
theory. This court concluded that the evidence presented on summary judgment could
support a conclusion that Dinki Electric, Denki Electric and Bays Company were
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continuations of Premier Electric and Bays Electric and therefore liable for contributions to
Plaintiffs. This court also specifically noted untrue statements and direct contradictions in
the arguments and evidence provided by Defendants.
However, this court also rejected Plaintiffs’ argument that they were entitled to
summary judgment as to liability. This court stated:
Plaintiffs have made convincing arguments regarding the
applicability of the alter ego doctrine and the single employer
doctrine to the facts of this case. However, in considering
Plaintiffs’ Cross Motion for Partial Summary Judgment as to
Liability, this court must construe the evidence in the light most
favorable to Defendants and draw all reasonable inferences in
favor of Defendants. Defendants have presented some evidence,
including deposition testimony, to support their position that the
Defendant companies are separate and should not be liable for
contributions to the Pension Fund and Welfare Fund. In ruling
on Plaintiffs’ Motion for Partial Summary Judgment, this court
cannot make credibility determinations, weigh the evidence or
decide which inferences to draw from the facts. George v. Kraft
Foods Global, Inc., 641 F.3d 786, 799 (7th Cir. 2011). This
court therefore must conclude that Plaintiffs have not shown that
there is no genuine dispute of material fact. Accordingly,
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Plaintiffs are not entitled to summary judgment as a matter of
The case remained scheduled for a final pretrial conference on January 5, 2012, and a bench
On January 3, 2012, Defendants filed a Notice of Interlocutory Appeal (#121). This
court entered an Opinion (#122) and, finding that Defendants had “missed a few steps in their
attempt to file an interlocutory appeal,” ordered that the Notice of Interlocutory Appeal was
On January 5, 2012, a final pretrial conference was held before this court. This court
entered the lengthy Pretrial Order (#125) submitted by the parties. The Pretrial Order
included a Joint Statement of Uncontested Facts.
The bench trial commenced on January 23, 2012. This court denied Motions in
Limine filed by Defendants the night before trial. This court agreed with Plaintiffs that the
motions were untimely and that Defendants’ asserted lack of knowledge about the witnesses’
testimony was caused by their own failure to timely provide requested information and to
depose witnesses disclosed by Plaintiffs. Evidence was presented on January 23, 24, and 25,
2012. After the transcripts from the proceedings were completed, a briefing schedule was
Subsequently, Defendants’ counsel Bruce F. Mills, who had represented Defendants
throughout the proceedings in this court, filed Motions to Withdraw. Attorney Mills asked
to be allowed to withdraw “due to medical conditions that now prevent his continued practice
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of law.” On April 12, 2012, a hearing was held and this court allowed Attorney Mills to
withdraw. Attorney Michael Ernest Avakian entered his appearance on behalf of Defendants
and a new briefing schedule was set. On June 4, 2012, Plaintiffs filed their Proposed
Findings of Fact and Conclusions of Law (#149). On July 16, 2012, Defendants filed their
Proposed Findings of Fact and Conclusions of Law (#150). On August 6, 2012, Plaintiffs
filed their Reply to Defendants’ Proposed Findings of Fact and Conclusions of Law (#151).
All evidence has been received and the case is fully briefed and ready for ruling.
This court notes that this case commenced on June 16, 2008, more than four years
ago. The docket reflects that delays were caused by Defendants’ counsel’s resistance to
discovery requests, understandable confusion regarding the Defendant entities (“Denki
Electric Corporation, Inc.” and “Dinki Electric, Inc.,” as well as “Bays Electric, Inc.” and
“Bays Company, LLC”), and attempts to avoid the service of process by Dinki Electric. In
addition, Defendants’ counsel unsuccessfully attempted to further delay the case by filing a
Notice of Interlocutory Appeal two days before the final pretrial conference.
Terry Bays (Bays) was the sole owner of Bays Electric, which he incorporated in
1990. Bays Electric provided services as an electrical contractor. Bays was responsible for
hiring and firing, personnel, management, supervising employees, and performing electrical
2 The facts are taken from the Stipulation of Uncontested Material Fact attached to the
Pretrial Order (#125), the testimony presented at trial, and the documents admitted into evidence.
This court has reviewed the proposed findings of fact provided by the parties and has included
those facts which are relevant to the issues before the court and are adequately supported by the
record. This court has not included any of the facts listed by the parties where the record citation
does not support the factual statement.
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work with his tools for Bays Electric. Bays Electric had no equipment and worked primarily
in the Terre Haute, Indiana, area. On September 25, 1990, Bays, as president of Bays
Electric, signed two letters of assent and authorized the Central Indiana Chapter of the
National Electrical Contractors Association (NECA) as its collective bargaining
representative for all matters pertaining to the labor agreements between NECA and the
International Brotherhood of Electrical Workers Local Union No. 725 (IBEW Local 725).
One letter of assent related to the Inside collective bargaining agreement between NECA and
IBEW Local 725 and the other letter related to the Residential collective bargaining
agreement between NECA and IBEW Local 725. Under the terms of the Inside and
Residential agreements, Bays Electric was obligated to make contributions to the NECA-
IBEW Pension Trust Fund (Pension Fund) and the NECA-IBEW Welfare Trust Fund
(Welfare Fund) for its employees. In April 2006, Bays formed Bays Company LLC. Bays
Electric made contributions for its employees, including Bays, until November 2006. In
November 2006, Bays Electric submitted a monthly report for electrical contractors and paid
for the following individuals who were employed by the company as electricians: Bays, Tim
Bays (Bays’ brother), Nathan Brown, Ernest Tessman, and Roy Smith.
Plen Smith (Smith) and his wife Deborah Smith were the sole owners of Premier
Electric, which was incorporated in 1992. Premier Electric was a commercial and residential
electrical contractor and worked primarily in the Terre Haute area. Deborah Smith was
employed as a school teacher and her only role for Premier Electric was to sign checks.
Smith was responsible for bidding jobs, supervising employees, working with his tools,
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payroll, billing, accounts payable, and labor relations. Smith also shared responsibility for
signing checks. Premier Electric had one vehicle but no equipment. On December 3, 1992,
Deborah Smith, as president of Premier Electric, signed two letters of assent and authorized
NECA as its collective bargaining representative for all matters pertaining to the labor
agreements between NECA and IBEW Local 725. One letter of assent related to the Inside
collective bargaining agreement between NECA and IBEW Local 725 and the other letter
related to the Residential collective bargaining agreement between NECA and IBEW Local
725. Under the terms of the Inside and Residential agreements, Premier Electric was
obligated to make contributions to the Pension Fund and the Welfare Fund for its employees.
Premier Electric made such contributions for its employees, including Smith, until November
2006. In November 2006, Premier Electric submitted a monthly report for electrical
contractors and paid contributions for the following individuals who were employed by the
company as electricians: Smith, Jim Carlson, Johnny Crowe, and James Smith. Smith
testified that he spent $8,000 to defend against an unfair labor practice charge in March 2006
and decided after that to “shut Premier down.”
On June 28, 2006, Bays sent a letter to NECA and stated that “effective immediately,
Bays Electric, Inc. hereby terminates any authority it may have previously given to [NECA]
to negotiate with the [IBEW] on behalf of Bays Electric, Inc.” This was shortly after he had
formed Bays Company, LLC. Bays testified that Bays Company was dormant from April
2006 to January 2008. On June 28, 2006, Deborah Smith sent a letter to NECA and stated
that “effective immediately, Premier Electrical Contractors, Inc. herby [sic] terminates any
2:08-cv-02133-MPM-DGB # 152 Page 12 of 33
authority it may have previously given to [NECA] to negotiate with the [IBEW] on behalf
of Premier Electrical Contractors, Inc.”
A new Residential agreement had taken effect on June 1, 2006, and was in effect
through May 31, 2008. The pertinent Inside agreement had taken effect on December 1,
2004, and was in effect through November 30, 2006. Todd Thacker, Business Manager for
IBEW Local 725, testified that the letters from Bays and Deborah Smith terminating NECA’s
authority had no effect on the Residential agreement, which was in effect until May 31, 2008.
The letters meant that the union would have to bargain a new Inside Agreement directly with
Bays Electric and Premier Electric prior to the termination of the agreement on November
30, 2006. Thacker testified that, in terms of labor relations, he always dealt with Bays for
Bays Electric and Smith for Premier Electric.
On August 28, 2006, Thacker sent a letter to Bays which stated that the union had
received notification that Bays Electric had chosen not to have NECA represent it in
negotiations. Thacker stated that, pursuant to the provisions of the Inside agreement, “this
is notification of the Local Union’s desire to change the agreement no later than November
30, 2006.” Also on August 28, 2006, Thacker sent the same letter to Smith regarding
Premier Electric. No negotiations took place between IBEW Local 725 and Bays or Smith.
On October 23, 2006, Thacker sent letters to Bays and Smith and stated that the union
requested papers from the Council on Industrial Relations for the Electrical Contracting
Industry (CIR) due to stalled negotiations. In each letter, Thacker stated that the CIR was
scheduled to hear the case the week of November 13, 2006. Thacker also asked Bays and
2:08-cv-02133-MPM-DGB # 152 Page 13 of 33
Smith to contact him so an interim meeting to resolve negotiations could be scheduled. No
interim meeting was held, and both Bays and Smith testified that they were aware of the
hearing before the CIR. The hearings regarding Bays Electric and Premier Electric were held
on November 13, 2006. Thacker attended the hearings but Bays and Smith did not. The CIR
issued a Decision in each case which stated that the “parties are directed to sign and
implement immediately the Inside Agreement which is attached hereto and hereby made a
part of this decision.” The effect of this decision was to extend IBEW Local 725’s Inside
labor agreement with Bays Electric and Premier Electric for two years, until November 30,
Neither Bays Electric nor Premier Electric made any attempt to vacate the CIR’s
November 13, 2006, decisions. On November 14, 2006, Bays sent a letter to IBEW Local
Effective November 22, 2006 Bays Electric, Inc. is lying [sic]
off all of its employees and will thereafter have no employees.
Therefore it is revoking its recognition of IBEW Local 725 as
the collective bargaining agent representing its employees and
rescinding any and all collective bargaining agreements which
may have arisen out of such recognition because it no longer has
On November 17, 2006, Deborah Smith sent an essentially identical letter to IBEW Local
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Effective November 29, 2006 Premier Electrical
Contractors, Inc. is laying off all of its employees and will
thereafter have no employees. Therefore, it is revoking its
recognition of IBEW Local 725 as the collective bargaining
agent representing its employees and rescinding any and all
collective bargaining agreements which may have arisen out of
such recognition because it no longer has any employees.
Thacker testified that IBEW Local 725 did not accept these letters as terminating the
collective bargaining agreements with Bays Electric and Premier Electric because the letters
were not in compliance with the termination provisions contained in the labor agreements,
which require 90 days written notice prior to the expiration of the contract.
William Hillis incorporated Dinki Electric in September 2006. Dinki Electric’s
corporate form did not provide for directors, bylaws or minutes. Hillis did not contribute any
working capital for Dinki Electric. Hillis has been friends with Bill Roach, Smith’s father-in-
law, for many years. Hillis’ daughter grew up with Smith’s wife, Deborah Smith, in the
1960s and 1970s. Deborah Smith’s mother (Roach’s wife) is Japanese. Hillis was in his 70’s
at the time Dinki Electric was formed. He was semi-retired and had spent his career working
in the financial services, banking and underwriting industries. Hillis is not an electrician and
had never worked in the electrical business. In 2006, Hillis was involved in helping secure
financing for two real estate developments, the Guilford project and the Mansion Row
project. Both projects were located in the Indianapolis area. Hillis had a conversation with
2:08-cv-02133-MPM-DGB # 152 Page 15 of 33
Roach about the Mansion Row project. Hillis testified that after he had talked to Smith and
offered him a job doing electrical work, Smith brought up the name “Dinki” and said it meant
After November 30, 2006, Dinki Electric employed electricians including: Bays,
Smith, Timothy Bays (Bays’ brother), Chris Bays (Bays’ son), James Smith and James
Carlson (both of whom had previously worked for Premier Electric). Smith and Bays were
paid at the wage rate of $36.00 per hour. Other electricians were paid at the rate of $11.00
per hour. Dinki Electric was a commercial and residential electrical contractor. Hillis was
aware that Bays and Smith had previously been affiliated with a labor union. Smith and Bays
managed the day-to-day operations of Dinki Electric. Bays supervised electricians on jobs
for Dinki Electric and also estimated work projects. Smith performed electrical work,
marketing, estimating, and supervised employees for Dinki Electric. Smith also handled
hiring and personnel matters and rented any equipment needed by Dinki Electric. All of the
employees of Dinki Electric used their own personal trucks. Smith acquired office space for
Dinki Electric in Terre Haute. The Dinki Electric office was listed in the Terre Haute
telephone book. Dinki Electric had a website and a copy of the information included on the
website was introduced into evidence. The website stated “Denki Electric” at the top, listed
the Terre Haute office as the “main” location and also listed an Indianapolis location. The
website provided contact information for Bays and Smith and listed Smith and Bays as the
“Dinki Managing Team.” Smith testified that he initiated the website for Dinki Electric and
reviewed the website upon completion. Smith testified that he could not get the company
2:08-cv-02133-MPM-DGB # 152 Page 16 of 33
Smith had possession of the only signature stamp for Dinki Electric and paid the bills
for Dinki Electric. Smith made all deposits and kept most of the financial records for Dinki
Electric. Smith maintained QuickBooks for Dinki Electric and was also responsible for
obtaining insurance for Dinki Electric. Smith testified that tax information for Dinki Electric
went to the office in Indianapolis. Hillis did not interview applicants for employment and
did not know any of Dinki Electric’s employees, other than Smith and Bays. He did not
know what Dinki Electric’s employees did as employees and did not know if Dinki Electric
served both residential and commercial clients. Hillis did not know how Dinki Electric
advertised and did not know who maintained Dinki Electric’s cash receipts and disbursement
journals. Hillis was never in the Dinki Electric office in Terre Haute. Dinki Electric paid
Hillis $10,200 in one year for “advisory services.” This court concludes that Hillis’
testimony established that he had very little to do with the management of Dinki Electric and
that any testimony attempting to establish that he had a role in the operation of Dinki Electric
Dinki Electric provided the electrical work for the Guilford project and the Mansion
Row project. Hillis recommended Dinki Electric for these projects and was responsible for
getting this work for Dinki Electric. There is no evidence that Hillis got any other projects
for Dinki Electric in Indianapolis. Dinki Electric also performed electrical work in Terre
Haute. A document was admitted into evidence which was a fax sent from Dave Crockett
to Thacker on April 4, 2007. The document shows that, on June 27, 2006, Bays Electric
2:08-cv-02133-MPM-DGB # 152 Page 17 of 33
provided an estimate of $6,850.00 for electrical work to be performed for the Vigo County
Treasurer in Terre Haute. On March 22, 2007, Dinki Electric submitted a bill for the work
for the Vigo County Treasurer’s office in the amount of $6,850.00. Thacker testified that he
observed Bays, Chris Bays and James Carlson performing electrical work at the Sycamore
Terrace shopping mall in 2007. Thacker also testified that he observed Bays and another
employee at the Honey Creek Square Mall job site in Terre Haute. Smith testified that
almost all of Dinki Electric’s work was performed in Indianapolis. Defendants did not
provide any documentation to support this estimate. This court finds that Smith’s self-
serving, unsupported testimony that most of Dinki Electric’s work was performed in the
Thacker testified that IBEW Local 725 and the related NECA Chapters are parties to
the Sixth District Portability Agreement, which covers Terre Haute and Indianapolis.
Thacker testified that Terre Haute is on Interstate 70 and is a quick commute to Indianapolis.
Thacker testified that, under the terms of the Portability Agreement, Bays Electric and
Premier Electric are allowed to travel and perform electrical work in the Indianapolis
jurisdiction using members from IBEW Local 725. Portability allows the employers and
union members to move around and cross jurisdictional boundaries. The Portability
Agreement generally allows up to four members of one local to travel with their employer
to another jurisdiction. The Portability Agreement requires the employer to pay the higher
wage package to maintain a level playing field in the jurisdiction where the work is
performed. Under the Portability Agreement, the fringe benefit contributions are paid to the
2:08-cv-02133-MPM-DGB # 152 Page 18 of 33
Host Local Union (Indianapolis) benefit funds and those funds reciprocate the money back
to the employee’s home Local Union, IBEW Local 725. The Inside agreement and
Residential agreement incorporate the Portability Agreement to allow employers to be more
competitive and portable and go from one jurisdiction to another.
The Inside agreement and Residential agreement also contain “subletting clauses”
which prohibit Bays Electric and Premier Electric from subletting, assigning, or transferring
work to a non-union company such as Dinki Electric.
Smith, Bays, and Hillis all testified that Dinki Electric had ceased operations by
December 2008.3 Dinki Electric was formally dissolved in 2010. After December 2008,
Smith and Bays were no longer employed by Dinki Electric and collected unemployment.
Smith then began providing electrical services as a working owner electrician for Denki
Electric, which he incorporated on April 2, 2007. Smith testified that “Denki” is Japanese
for “electric.” Denki Electric provides services as an electrical contractor and employed
James Carlson, who was a former employee of Premier Electric and Dinki Electric. Smith
runs the day-to-day business of Denki Electric, including marketing, estimating, billing,
accounting, payroll, supervision, and labor relations. Bays began providing electrical
services as a working owner electrician for Bays Company. Bays Company provides
services as an electrical contractor and employs Timothy Bays, a former employee of Bays
Electric and Dinki Electric. Bays runs the day-to-day business of Bays Company, including
3 Smith also testified that Dinki Electric performed some work after that but this court
does not find that testimony credible.
2:08-cv-02133-MPM-DGB # 152 Page 19 of 33
marketing, estimating, billing, accounting, payroll, supervision and labor relations.
A check detail for Denki Electric was admitted into evidence which showed that, in
October, November and December 2009, Denki Electric paid Dinki Electric a total of
$40,656.91 for work as a subcontractor. Smith was asked to explain this exhibit and testified
that Dinki Electric billed Denki Electric for services performed on commercial property.4
Smith stated that some of the work billed was performed on a property that he personally
owns in Terre Haute and that he did not remember where the other work was performed.
Smith testified that he called Hillis when he needed to subcontract work to Dinki Electric.
Hillis testified that Dinki Electric was not operating in 2009 and 2010 and stated that, after
Smith left Dinki Electric, it was dormant. When confronted with the exhibit showing
payments by Denki Electric to Dinki Electric in 2009, Hillis testified that he did not know
anything about it. This court concludes that Smith’s testimony regarding Dinki Electric
performing work for Denki Electric, which was contradicted by Hillis, was evasive and not
credible. This court further concludes that the check detail, and Smith’s evasive trial
testimony, is strong evidence that Smith was using Dinki Electric in 2009 to hide the labor
performed by Denki Electric.5 In addition, this court concludes that this testimony supports
4 Smith initially testified that Denki Electric “[m]aybe” subbed some work to Dinki
Electric in 2008 “[f]or service on a house.” Smith changed his story when confronted with the
5 This court notes that, in this litigation, Defendants have tried to claim that Denki
Electric has not had any employees since November 2006, a claim which this court finds
patently false. This court concludes that Smith was trying to hide the fact the Denki Electric had
employees by paying costs for labor to Dinki Electric. In their Proposed Findings of Fact and
Conclusions of Law (#150), Defendants stated that “Denki had no employees or time records . .
., except for Carlson after around February 2010” (emphasis in original). This court agrees with
Plaintiffs that Defendants provided no evidence to support this assertion. This court concludes
that this is a false, misleading statement.
2:08-cv-02133-MPM-DGB # 152 Page 20 of 33
a conclusion that Smith, along with Bays, was completely in charge of Dinki Electric and that
Smith used Dinki Electric and Denki Electric to evade Premier Electric’s obligations under
the labor agreements to pay contributions to the Pension Fund and Welfare Fund.
Steve Povse, a certified public accountant, was found to be qualified as an expert
witness in the areas of payroll examinations and audits of employer records to calculate what
contribution payments are due to the pension and welfare benefit plans. Dinki Electric failed
to provide the normal records used in a routine payroll examination. Dinki Electric failed
to provide payroll journals with employee wage rates, hours worked by employees and
records which describe the type of work performed. In cases where the employer does not
provide hours worked by employee, the methodology used by experts is to divide gross
wages by the wage rate to determine the hours worked. Then the hours worked are
multiplied by the contribution rates to determine the contributions due. Tari L. Stower
testified that she is the internal control supervisor for the NECA-IBEW Welfare Trust Fund.
She testified regarding the penalties and interest required under the terms of the applicable
Trust Agreements. She also testified that notices of penalties and interest were sent to Bays
Electric and Premier Electric. Based upon Povse’s and Stower’s testimony and the exhibits
admitted, Defendants owe Plaintiffs contributions in the amount of $319,429.43 for the
period from November 1, 2006, through December 31, 2008. The amount owed for penalties
is $71,024.14 and the amount owed for interest is $118,098.22, for a total of $189,122.36.
These are the damages Plaintiffs are seeking from Defendants.
2:08-cv-02133-MPM-DGB # 152 Page 21 of 33
Plaintiffs, the Pension Fund and the Welfare Fund, are employee benefit plans
administered pursuant to the terms and provisions of the Agreements and Declarations of
Trust creating the Funds and are required to be maintained and administered in accordance
with the provisions of the LMRA and ERISA. Plaintiff IBEW Local 725 is a labor
organization within the meaning of the LMRA. Plaintiffs had standing to bring this action
pursuant to ERISA and the LMRA to recover contributions to the Pension Fund and Welfare
Fund which were required by written agreements enforceable against Bays Electric and
Premier Electric. Under section 515 of ERISA, “[e]very employer who is obligated to make
contributions to a multiemployer plan under the terms of a collectively bargained agreement
shall, to the extent not inconsistent with law, make such contributions in accordance with the
terms and conditions of such plan or such agreement.” 29 U.S.C. § 1145. The Pension Fund
and Welfare Fund are multiemployer plans and may sue under ERISA to recover required
contributions in federal court. Line Constr. Benefit Fund v. Allied Elec. Contractors, Inc.,
591 F.3d 576, 579-80 (7th Cir. 2010); see also Sullivan v. William A. Randolph, Inc., 504
F.3d 665, 667 (7th Cir. 2007), overruled on other grounds in Pakovich v. Verizon Ltd. Plan,
653 F.3d 488 (7th Cir. 2011); Auto. Mechs. Local 701 Welfare & Pension Funds v. Vanguard
Car Rental USA, 502 F.3d 740, 744-45 (7th Cir. 2007); Anderson v. Liles, 774 F. Supp. 2d
902, 906-07 (N.D. Ill. 2011). And, since the breach of a contract between a union and an
employer is actionable under section 301 of the LMRA, 29 U.S.C. § 185(a), Plaintiffs can
base their claim on this section as well as ERISA. Sullivan, 504 F.3d at 667; see also IBEW,
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Local 481 v. Sign-Craft, Inc., 864 F.2d 499, 503 (7th Cir. 1988).
B. EXISTENCE OF EFFECTIVE LABOR AGREEMENTS
Based upon the evidence presented, this court concludes that the effect of the CIR
decisions was to extend the Inside agreements with Bays Electric and Premier Electric for
two years, until November 30, 2008. At trial, this court repeatedly stated that no timely
challenge had been made to the CIR decisions and the decisions could not be challenged at
trial. See McKinney Restoration, Co. v. Ill. Dist. Council No. 1 of Int’l Union of Bricklayers
& Allied Craftworkers, AFL-CIO, 392 F.3d 867, 869 (7th Cir. 2004) (failure to challenge an
arbitration award within the 90 day limitations period renders the award final); see also Int’l
Union of Operating Eng’rs, Local 150, AFL-CIO v. Rabine, 161 F.3d 427, 432 (7th Cir.
1998); Sullivan v. Gilchrist, 87 F.3d 867, 871 (7th Cir. 1996). This court therefore rejects the
arguments Defendants have raised challenging the validity of the CIR decisions. This court
additionally agrees with Plaintiffs that many of the issues raised were not included in the
Pretrial Order and cannot be considered for that reason as well. See Gorlikowski v. Tolbert,
52 F.3d 1439, 1443-44 (7th Cir. 1995) (the pretrial order is treated as superseding the
pleadings and establishes the issues to be considered at trial).
This court concludes that Bays Electric and Premier Electric were bound by the
Residential Agreement, which was in effect until May 30, 2008.6 Bays Electric and Premier
Electric were also bound by the Inside Agreements which were extended to November 30,
6 This court agrees with Plaintiffs that the termination of the Residential Agreement prior
to this date was not an issue included in the Pretrial Order. Therefore, any issue regarding the
termination of the Residential Agreement will not be considered by this court.
2:08-cv-02133-MPM-DGB # 152 Page 23 of 33
2008, by the CIR decisions. This court agrees with Plaintiffs that Defendants have not
effectively terminated the agreements pursuant to the terms of the agreements so they
C. ALTER EGO, SUCCESSOR AND SINGLE EMPLOYER LIABILITY
The question before this court is whether Dinki Electric, Bays Company and Denki
Electric are required to make contributions under the terms of the labor agreements. This
court has previously noted that both the Pension Fund and Welfare Fund are multiemployer
plans. The Seventh Circuit recently stated:
A multiemployer pension plan is created when various
employers agree to make contributions to a common pension
fund on behalf of their respective employees. Congress has
recognized that the reliability of multiemployer pension funds
is of extreme importance to the workers who rely on them and
of vital importance to the economic and social well-being of the
Nation. To achieve and maintain the requisite level of financial
security, multiemployer pension plans must maintain adequate
funding levels to ensure their capacity to fund the benefits of
workers who have a legitimate expectation that those funds will
7 This court notes that the letters sent by Bays and Smith that they were laying off all of
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Cent. States Se. & Sw. Areas Pension Fund v. O’Neill Bros. Transfer & Storage Co., 620
F.3d 766, 767-68 (7th Cir. 2010); see also Upholsterers’ Int’l Union Pension Fund v. Artistic
Furniture of Pontiac, 920 F.2d 1323, 1329 (7th Cir. 1990) (recognizing the importance of the
collection of multiemployer plan contributions).
A court may therefore determine whether a company is liable for contributions as the
alter ego of the company contractually obligated to make the contributions. See Trs. of
Pension, Welfare & Vacation Fringe Benefit Funds of IBEW Local 701 v. Favia Elec. Co.,
995 F.2d 785, 789 (7th Cir. 1993); Anderson, 774 F. Supp. 2d at 909. The alter ego doctrine
turns upon “the existence of a disguised continuation of a former business entity or an
attempt to avoid the obligations of a collective bargaining agreement.” Favia Elec. Co., 995
F.2d at 789, quoting Int’l Union of Operating Eng’rs v. Centor Contractors, 831 F.2d 1309,
1312 (7th Cir. 1987); Anderson, 774 F. Supp. 2d at 909. “[U]nlawful motive or intent are
critical inquiries in an alter ego analysis.” Favia Elec. Co., 995 F.2d at 789; Anderson, 774
The alter ego analysis is very fact intensive and centers around several factors which
involve whether the enterprises share “substantially identical: (1) management; (2) business
purposes; (3) operations; (4) equipment; (5) customers; (6) supervision; and (7) ownership.”
Chicago Carpenters Pension Fund v. Vacala Masonry, Inc., 946 F. Supp. 612, 617 (N.D. Ill.
1996), quoting Bd. of Trs. of Chicago Plastering Institute Pension Tr. Fund v. William A.
Duguid Co., 761 F. Supp. 1345, 1348 (N.D. Ill. 1991). “No one factor is determinative of
2:08-cv-02133-MPM-DGB # 152 Page 25 of 33
the issue and thus, alter-ego status may be established where one or more of the elements is
missing.” Vacala Masonry, 946 F. Supp. at 617. Thus, an alter ego relationship may exist
even though there is no evidence of actual common ownership. Cent. States, Se. & Sw.
Areas Pension Fund v. Sloan, 902 F.2d 593, 597 (7th Cir. 1990).
In denying Defendants’ Motion for Summary Judgment, this court stated:
This court agrees with Plaintiffs that the evidence
presented in this case could support a conclusion that Terry
Bays and Plen Smith were dissatisfied as union electrical
contractors and sought to avoid the obligations under the IBEW
Local 725 labor agreements with their respective companies,
Bays Electric and Premier Electric. The evidence could support
a finding that, in order to avoid these obligations, they became
“employees” of Dinki Electric, a company that they ran even
though Bill Hillis was named as the owner. Based upon the
essentially identical letters sent by Bays Electric and Premier
Electric in their attempts to withdraw from the union, a trier of
fact could find that Terry Bays and Plen Smith were working
together to get out of the union and continue their work as
electrical contractors without union obligations. The evidence
could also support a finding that Denki Electric and Bays
Company were continuations of the business, again created to
2:08-cv-02133-MPM-DGB # 152 Page 26 of 33
avoid the obligations of Bays Electric and Premier Electric.
This court concludes that that is exactly what the evidence presented at trial
established. The evidence showed that, in March 2006, Smith paid $8,000 to defend against
an unfair labor practice charge and decided to “shut Premier [Electric] down,” and thereby
avoid his union obligations. This court concludes that Bays also decided that he wanted to
avoid his union obligations and formed Bays Company, LLC, in April 2006. Subsequently,
in June 2006, Bays and Smith (by his wife Deborah) sent almost identical letters to NECA
stating that they were terminating NECA’s authority to bargain on behalf of Bays Electric
and Premier Electric with IBEW Local 725. Shortly thereafter, Smith met with Hillis, a close
friend of his father-in-law, who was involved in two developments in Indianapolis and was
in a position to recommend a contractor to provide electrical work on the developments.
Hillis then set up Dinki Electric in September 2006. Based upon the evidence presented, and
this court’s determinations regarding credibility, this court concludes that Hillis had no
involvement in the management of Dinki Electric and was acting solely as a straw man when
Bays and Smith failed to enter into negotiations with IBEW Local 725 or attend the
CIR hearing, although they both admitted they had notice of the hearing. On November 13,
2006, the Inside agreements were extended by the CIR decisions to November 30, 2008.
Bays and Smith (through Deborah) then sent letters stating that they were laying off all of
their employees and rescinding their labor agreements. Bays and Smith, however, did not
shut down their businesses and continued performing work as electrical contractors. They,
2:08-cv-02133-MPM-DGB # 152 Page 27 of 33
and some of their employees, first performed work as electrical contractors for Dinki
Electric. This court concludes that Bays and Smith controlled and managed Dinki Electric
and Hillis had no involvement in the management of the company. Hillis was paid by Dinki
Electric for his services as a figurehead or strawman. Bays and Smith did take advantage of
Hillis’ connections with the two developments in Indianapolis to get work as electrical
contractors on the developments. This court concludes that Bays Electric and Premier
Electric could have performed this work, and made the appropriate contributions to the
Pension Fund and Welfare Fund, pursuant to the portability provisions in the applicable
agreements. This court further concludes that the evidence showed that Dinki Electric also
performed work as an electrical contractor in the Terre Haute area. Evidence was presented
that work was performed by Dinki Electric in Terre Haute and, as noted, this court did not
find credible Smith’s testimony that most of Dinki Electric’s work was performed in
After Dinki Electric stopped operations in December 2008, Bays and Smith continued
to perform work as electrical contractors in Terre Haute as owner-operators of Bays
Company and Denki Electric. The exhibit which showed the website set up for Dinki
Electric used the terms “Denki” and “Dinki” and was strong evidence that the businesses
were essentially the same company. The fact that Denki Electric paid Dinki Electric for
subcontracted work in 2009, at a time when Dinki Electric had ceased operations and had no
employees, shows that Smith was in control of both companies and was using the companies
to hide labor and avoid his union obligations. Tim Bays, Bays’ brother, was employed at
2:08-cv-02133-MPM-DGB # 152 Page 28 of 33
Bays Electric, Dinki Electric and Bays Company. James Carlson and James Smith were
employed by Premier Electric and Dinki Electric. James Carlson was also employed by
Based upon this evidence, this court concludes that the relevant factors favor a finding
that Dinki Electric and Bays Company are the alter egos of Bays Electric and that Dinki
Electric and Denki Electric are the alter egos of Premier Electric. The companies shared
substantially identical management, business purposes, operations, and supervision. See
Cent. Laborers’ Pension Fund v. Ivy Concrete Founds., Inc., 2011 WL 4566444, at *6 (C.D.
Ill. 2011); Anderson, 774 F. Supp. 2d at 909-10. The companies had little if any equipment
so that is not a significant factor. This court further concludes that customers in common is
not a significant factor in this case because electrical contractors typically move from job to
job and do not have a permanent customer base. In addition, this court concludes that
differences in ownership are not dispositive under these circumstances. See Sloan, 902 F.2d
This court has carefully reviewed the case law cited by Defendants in support of their
argument that Bays Electric and Premier Electric exercised their labor law right to go out of
business and had no further obligation under the collective bargaining agreements and that
Dinki Electric, Denki Electric and Bays Company were not alter egos of Bays Electric and
Premier Electric. This court concludes that this argument is not persuasive. First of all, Bays
Electric and Premier Electric did not go out of business. Instead, they continued to perform
the same work, first as Dinki Electric, and then as Bays Company and Denki Electric. Also,
2:08-cv-02133-MPM-DGB # 152 Page 29 of 33
the cases cited by Defendants are distinguishable.
In this case, Bays controlled operations and labor issues for Bays Electric and Smith
controlled operations and labor issues for Premier Electric and both went on to control
operations and labor issues at Dinki Electric. Cf. Int’l Oil, Chemical & Atomic Workers,
Local 7-517 v. Uno-Ven Co., 170 F.3d 779, 782 (7th Cir. 1999); Rabine, 161 F.3d at 433;
Nat’l Labor Relations Bd. v. Bell Co., Inc., 561 F.2d 1264, 1268 (7th Cir. 1977). In addition,
this court concludes that Bays and Smith did not close their entire businesses and instead
continued providing work as electrical contractors and, importantly, benefitted from the
operation of Dinki Electric. Cf. Bell Co., 561 F.2d at 1268. The evidence further shows that
Bays went on to control operations and labor issues at Bays Company, and benefit from its
operation, and Smith went on to control operations and labor issues at Denki Electric, and
benefit from its operation. Cf. Bell Co., 561 F.2d at 1268.
This court concludes, without hesitation, that Bays (operating as Bays Electric) and
Smith (operating as Premier Electric) had the intent to avoid their collective bargaining
agreement obligations when they controlled and managed Dinki Electric and then went on
to operate Bays Company and Denki Electric. This court concludes that they seized on the
opportunity to rid themselves of the union. See Nat’l Labor Relations Bd. v. Tricor Prods.,
Inc., 636 F.2d 266, 270-71 (10th Cir. 1980); cf. Vacala Masonry, 946 F. Supp. at 618 (under
the circumstances there, the defendant “did not intend to avoid complying with the terms of
a collective bargaining agreement it was obligated to follow”). This court concludes that this
case, in contrast to Vacala Masonry, presents the “typical situation whereby a union company
2:08-cv-02133-MPM-DGB # 152 Page 30 of 33
dissolves itself and reemerges as a non-union company in order to circumvent compliance
with its obligations under a preexisting collective bargaining agreement.” Vacala Masonry,
946 F. Supp. at 618. Bays Electric and Premier Electric cannot be allowed to evade their
obligations by “simply going out of business and then reemerging as a different entity with
the same business purpose.” See Vacala Masonry, 946 F. Supp. at 619. In this case, Bays
Electric and Premier Electric pretended to abandon their operations by transferring their
operations to a sham entity, Dinki Electric. See Uno-Ven Co., 170 F.3d at 783.
In addition, this court concludes that the evidence presented supports a finding that
Dinki Electric, Bays Company and Denki Electric are also liable under a successor liability
theory. The Seventh Circuit has recognized that the successor doctrine is broad in order to
protect federal rights or effectuate federal policies. Chicago Truck Drivers, Helpers &
Warehouse Workers Union (Independent) Pension Fund v. Tasemkin, Inc., 59 F.3d 48, 49
(7th Cir. 1995). In the ERISA context, successor liability exists “when: (1) there exists
sufficient indicia of continuity between the two companies and (2) the successor firm had
notice of its predecessor’s liability.” Central Laborers’ Pension Fund v. Coit, Inc., 2007 WL
3037253, at *4 (C.D. Ill. 2007), citing Upholsterers’ Int’l Union Pension Fund, 920 F.2d at
1329; see also Tasemkin, Inc., 59 F.3d at 49.
Defendants have cited Fall River Dyeing & Finishing Corp. v. Nat’l Labor Relations
Bd., 482 U.S. 27 (1987) and insist that they cannot be found to be liable as successors
because a majority of Bays Electric’s employees were not employed by Dinki Electric and
2:08-cv-02133-MPM-DGB # 152 Page 31 of 33
Bays Company and a majority of Premier Electric’s employees were not employed by Dinki
Electric and Denki Electric. This court does not find this argument persuasive. In Fall River
Dyeing, the United States Supreme Court set out a number of factors which can be
considered in determining whether there is “substantial continuity” between the two
businesses. Fall River Dyeing, 482 U.S. at 43. A determination that successor liability is
appropriate must be based on the facts of each case. See Tasemkin, Inc., 59 F.3d at 49. This
court concludes that there is sufficient evidence of continuity in this case. See Ivy Concrete
Founds., 2011 WL 4566444, at *5 (companies performed same work and were managed by
the same person). In addition, there is overwhelming evidence of notice of the predecessor’s
liability because there can be no doubt that Bays and Smith were aware of the union
obligations of Bays Electric and Premier Electric when they continued the business as Dinki
Electric, Bays Company and Denki Electric. Therefore, this court concludes that the factor
asserted by Defendants is not dispositive in this case.
Moreover, this court concludes that the evidence presented supports a finding that
Dinki Electric, Bays Company and Denki Electric are liable as single employers. See Cent.
Ill. Carpenters Health & Welfare Tr. Fund v. Struben, 2009 WL 497393, at *20 (C.D. Ill.
2009). This determination is based on four factors: “(1) interrelation of operations, (2)
common management, (3) centralized control of labor relations, and (4) common ownership.”
Favia Elec. Co., 995 F.2d at 788; Struben, 2009 WL 497393, at *20. “No one factor is
determinative: the decisionmaker must weigh the totality of the circumstances.” Struben,
2:08-cv-02133-MPM-DGB # 152 Page 32 of 33
2009 WL 497393, at *20. This court concludes that the operations were interrelated, there
was common management and centralized control of labor relations. Weighing the totality
of the circumstances, this court concludes that these factors favor a finding that Premier
Electric, Dinki Electric and Denki Electric were a single employer and that Bays Electric,
Dinki Electric and Bays Company were a single employer. Therefore, Dinki Electric and
Denki Electric are liable for the contribution obligations of Premier Electric and Dinki
Electric and Bays Company are liable for the contribution obligations of Bays Electric.
In this case, the parties stipulated that all the individuals listed in the payroll audit
were electricians who performed the work of electricians. The payroll audit specifically lists
the employees who performed covered work. Povse, who was qualified as an expert witness,
calculated the damages based upon the records produced by Defendants. Stower testified
regarding the calculation of interest and penalties based upon the terms of the applicable
agreements. Defendants did not dispute the calculations at trial. Therefore, this court accepts
Povse’s and Stower’s calculations of damages.
(1) This court rules in favor of Plaintiffs, NECA-IBEW Pension Trust Fund, NECA-
IBEW Welfare Trust Fund and International Brotherhood of Electrical Workers Local Union
No. 725, and against Defendants, Bays Electric, Inc., Premier Electrical Contractors, Inc.,
Dinki Electric, Inc., Bays Company, LLC and Denki Electric Corporation, Inc. on all claims.
Judgment is entered in favor of Plaintiffs and against Defendants in the amount of
2:08-cv-02133-MPM-DGB # 152 Page 33 of 33
$319,429.43 for contributions for the period from November 1, 2006, through December 31,
2008, $71,024.14 for penalties and $118,098.22 for interest, for a total judgment of
(2) Plaintiffs are allowed thirty (30) days to file their petition for attorney’s fees.
s/ Michael P. McCuskey
Acta Orthop. Belg. , 2006, 72 , 756-760 Doxycycline impairs tendon repair in rats Björn PASTERNAK, Mårten FELLENIUS, Per ASPENBERG From the Faculty of Health Sciences, Linköping University, Linköping, Sweden Doxycycline exhibits various effects apart from its MMPs are a group of zinc dependent neutral antimicrobial activity, such as inhibition of matrix proteinases that are cap
Service de réanimation médicale Hôpital Pellegrin (Bordeaux) Asthme aigu grave : identification et bases du traitement 1. Introduction En France, la prévalence de l’asthme a fortement augmenté au cours de ces 15 dernières années, passant de 2-3 % à 5-7 %, ce qui représente entre 2,5 et 3 millions de personnes. La prévalence est néanmoins variable selon l’âge